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Summary of Public Comments and Responses
Federal Implementation Plan for True Minor Sources in Indian Country in the Oil and Natural Gas Production and Natural Gas Processing Segments of the Oil and
Natural Gas Sector; Amendments to the Federal Minor New Source Review Program in Indian Country to Address Requirements for True Minor Sources in
the Oil and Natural Gas Sector
June 2016
This document provides the U.S. Environmental Protection Agency’s (EPA’s) responses to
public comments on the “Federal Implementation Plan for True Minor Sources in Indian Country
in the Oil and Natural Gas Production and Natural Gas Processing Segments of the Oil and
Natural Gas Sector; Amendments to the Federal Minor New Source Review Program in Indian
Country to Address Requirements for True Minor Sources in the Oil and Natural Gas Sector.”
The EPA published a notice of proposed rulemaking in the Federal Register on September 18,
2015 (80 FR 56554).
The Federal Implementation Plan (FIP) is designed to streamline the permitting of true minor oil
and gas sources planning to locate or expand in Indian country.
During the public comment period, the EPA received 36 comment letters in response to the
September 18, 2015 proposal from industry representatives and associations, environmental
organizations, and municipalities. In addition, the EPA held three public hearings on the rules
throughout the country and received 3 additional comments on the draft proposal. The list of
commenters and affiliations appears after the Table of Contents. Throughout this document,
“Reviewing Authority,” “we,” “us” and “our” refer to the EPA.
This document provides the EPA’s responses to the public comments regarding these proposals.
The verbatim text of each comment extracted from the original comment letters is included in
this document, arranged by subject into groups. For each comment, we provide the name and
affiliation of the commenter and the document control number (DCN) assigned to the comment
letter. The verbatim comments appear as submitted except for certain formatting changes. We
have put all the footnotes the commenters have used into a consistent format and also inserted
brackets where needed to make the regulatory, Federal Register (FR) references clear such as
using "[80 FR 56558.]" instead of "80 Fed. Reg. at 56558." Also, when we originally excerpted
the comments into Microsoft Word from the EPA Docket PDF files, we corrected typos or
missing letters, etc. where text blocks did not copy over consistently.
Following each set of verbatim comments, a summary of each issue raised in the verbatim
comments is provided. The EPA’s responses to these comments are provided immediately
following each group of summarized comment excerpts. In some cases, a commenter
incorporated by reference the comments of another company or organization. Rather than repeat
these comment excerpts for each commenter, the EPA has listed the comment excerpt only once
under the name of the person, company or organization that submitted the comment and included
a list of commenters who indicated their support for that comment in a footnote. Copies of all
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comment letters submitted are available at http://www.regulations.gov by searching Docket Id.
No. EPA-HQ-OAR-2014-0606.
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TABLE OF CONTENTS
Section Page
TABLE OF CONTENTS ............................................................................................................. 3
List of Commenters....................................................................................................................... 4
1.0 Comments Related to the Proposed Amendments to the Federal Indian Country Minor
NSR Rule ............................................................................................................................ 5
1.1 Comments Related to Preconstruction Permit Requirements ................................. 5
1.2 Comments Related to Tribal Sovereignty and the Definition of Indian Country in
40 CFR 49.152 ...................................................................................................... 17
2.0 Comments Related to Implementation Issues ................................................................... 24
2.1 Comments on Requirements Relating to Threatened or Endangered Species and
Historic Properties ................................................................................................ 30
3.0 Comments on the Rationale for the Proposed FIP ............................................................ 39
4.0 Comments Related to the FIP as an Alternative to Site-Specific Permits, General Permits,
and Permits-by-Rule ......................................................................................................... 67
4.1 Synthetic Minor Sources and Minor Modifications at Major Sources ................. 91
4.2 Nonattainment Areas .......................................................................................... 110
5.0 Comments Related to How the EPA Selected Equipment Included in the Proposed FIP
......................................................................................................................................... 123
6.0 Comments Related to Pollutants Included in the Proposed FIP ..................................... 143
7.0 Comments Related to Exclusion of Existing Sources from the Proposed Oil and Natural
Gas FIP............................................................................................................................ 147
8.0 General Comments (e.g., Administrative, Incorporate by Reference) ........................... 164
9.0 Other Comments (e.g., Forms, ANPR Comments, General Support) ............................ 167
10.0 Comments on Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments ................................................................................................................... 169
11.0 Comments Requesting Extension of the Comment Period ............................................. 170
12.0 Out of Scope Comments ................................................................................................. 171
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List of Commenters
Docket Id. No. Commenter Affiliation
EPA-HQ-OAR-2014-0606-0008 Jack Dalrymple North Dakota Industrial
Commission (NDIC)
EPA-HQ-OAR-2014-0606-0009 Anonymous public
comment
Anonymous public comment
EPA-HQ-OAR-2014-0606-0010 H. Renders H. Renders
EPA-HQ-OAR-2014-0606-0011 A. Braden A. Braden
EPA-HQ-OAR-2014-0606-0012 Eric Cowden Marcellus Shale Coalition
(MSC)
EPA-HQ-OAR-2014-0606-0013 K. Zafar K. Zafar
EPA-HQ-OAR-2014-0606-0014 Shawn Bennett Ohio Oil and Gas Association
EPA-HQ-OAR-2014-0606-0015 Matthew Hite Gas Processors Association
(GPA)
EPA-HQ-OAR-2014-0606-0018 Andrew Casper Colorado Oil & Gas Association
(COGA)
EPA-HQ-OAR-2014-0606-0019 Howard J. Feldman American Petroleum Institute
(API)
EPA-HQ-OAR-2014-0606-0020 Peter Mueller EcoVapor Recovery Systems
EPA-HQ-OAR-2014-0606-0021 Matthew Hite Gas Processors Association
(GPA)
EPA-HQ-OAR-2014-0606-0022 James D. Elliott Independent Petroleum
Association of America (IPAA)
EPA-HQ-OAR-2014-0606-0023 Margo Thorning American Council for Capital
Foundation (ACCF)
EPA-HQ-OAR-2014-0606-0024 Kathleen M. Sgamma Western Energy Alliance
EPA-HQ-OAR-2014-0606-0025 Kathleen M. Sgamma Western Energy Alliance
EPA-HQ-OAR-2014-0606-0026 Clement J. Frost Southern Ute Indian Tribe
EPA-HQ-OAR-2014-0606-0027 W. Marrs W. Marrs
EPA-HQ-OAR-2014-0606-0031 Clement J. Frost Southern Ute Indian Tribe
EPA-HQ-OAR-2014-0606-0032 Bill Thompson National Tribal Air Association
(NTAA)
EPA-HQ-OAR-2014-0606-0037 S. Ventsch S. Ventsch
EPA-HQ-OAR-2014-0606-0038 Mike Smith QEP Resources, Inc.
EPA-HQ-OAR-2014-0606-0039 Shaun Chapoose Ute Indian Tribe
EPA-HQ-OAR-2014-0606-0040 Mark Sutton Gas Processors Association
(GPA)
EPA-HQ-OAR-2014-0606-0041 Scott Mason Enerplus Resources (USA)
Corporation
EPA-HQ-OAR-2014-0606-0042 Shaun Chapoose Ute Indian Tribe
EPA-HQ-OAR-2014-0606-0043 Paul Billings American Lung Association
EPA-HQ-OAR-2014-0606-0044 Robin Cooley and Joel
Minor
Earthjustice et al.
EPA-HQ-OAR-2014-0606-0045 Kathleen M. Sgamma Western Energy Alliance
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List of Commenters
Docket Id. No. Commenter Affiliation
EPA-HQ-OAR-2014-0606-0046 Howard J. Feldman American Petroleum Institute
(API)
EPA-HQ-OAR-2014-0606-0047 Laura Nelson Office of the Governor, State of
Utah
EPA-HQ-OAR-2014-0606-0048 Rollie Wilson Fredericks Peebles & Morgan
LLP
EPA-HQ-OAR-2014-0606-0049 Jack Dalrymple North Dakota Industrial
Commission (NDIC)
EPA-HQ-OAR-2014-0606-0050 C. Lish C. Lish
EPA-HQ-OAR-2014-0606-0051 Kenneth A. Malmquist
and Todd Rudolph
SLR International Corporation
and Ultra Resources, Inc.
EPA-HQ-OAR-2014-0606-0052 Lee Fuller and V. Bruce
Thompson
Independent Petroleum
Association of America (IPAA)
and American Exploration and
Production Council (AXPC)
EPA-HQ-OAR-2014-0606-0058
(0058 – Bracken)
K. Bracken Anadarko Petroleum
Corporation
EPA-HQ-OAR-2014-0606-0058
(0058 – Jacus)
J. Jacus Western Energy Alliance
EPA-HQ-OAR-2014-0606-0058
(0058 – Dickinson)
K. Dickinson Enerplus Resources
1.0 Comments Related to the Proposed Amendments to the Federal Indian Country
Minor NSR Rule
1.1 Comments Related to Preconstruction Permit Requirements
QEP Resources, Inc. (0038): The inherently unpredictable nature of oil and natural gas
production makes the preconstruction requirement proposed by EPA a burdensome requirement
that will be of limited use to EPA and confusing to the public.
First, it is important to note that operators are unable to accurately determine their PTE prior to
construction. A number of variables, some known and some unknown, will dictate how a well
comes online and the level of emissions associated with production. For example, operators are
constantly evaluating completion activities with an eye toward innovation. Within even a short
amount of time, an operator may develop a more efficient completion process that may increase
initial production and thereby potentially increase emissions. However, efficiencies may not be
discovered until after the new process is attempted (i.e. post-construction). Accordingly, pre-
construction registrations are essentially educated guesses.
Pre-construction emission estimates are of limited use to EPA. Such estimates are not accurate
enough to be used in emission inventories and certainly cannot be relied on for the purposes of
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air quality modeling. Moreover, inaccurate information and confusion created by a pre-
construction registration will only be compounded when this information is made public. Third
parties may assume pre-construction PTE estimates represent actual emissions data. In turn,
overstated evaluations of oil and natural gas development's impact on airsheds will result.
In order to provide EPA and others with more accurate actual data, the pre-construction
registration will need to be amended after construction once actual emissions have been
determined. This revision will require duplicative work by operators and EPA will be tasked
with processing and reviewing duplicative submittals.
As a solution to this problem, instead of preconstruction registration, we urge EPA to allow
operators to register under the FIP by providing actual emissions data (based on the first thirty
days of production) due within ninety days of the first date of production. A similar practice is
already allowed by EPA under the existing NSPS OOOO rules. Several states also acknowledge
the value in post construction registration and/or permitting of oil and gas production facilities.
In Wyoming, oil and gas operators may commence operation and modification of a facility prior
to obtaining an Air Quality Permit under Wyoming Air Quality Standards and Regulations,
Chapter 6, Section 2, so long as the operator satisfies certain emission control requirements
outlined in Wyoming Department of Environmental Quality's Oil and Gas Production Facilities,
Chapter 6, Section 2 Permitting Guidance (last revised September 2013). In Colorado, emission
information related to new/modified oil and gas exploration and production operations (well site
and associated equipment) is not required to be submitted to Colorado's Air Pollution Control
Division until "after exploration and/or production drilling, workovers, completions and testing
are finished." See Air Quality Control Commission Regulation No.3, Part A, Section II.D.1.111.
Finally, the North Dakota Department of Health provides a similar, post-construction registration
process for operators in North Dakota. A completed oil and gas well registration form and gas
analysis must be submitted to the Department of Health within ninety days of the completion or
recompletion of a well. North Dakota Century Code Chapter 33, Section 15-20-02.
Allowing oil and gas operators to provide emission information within ninety days of the first
date of production under the FIP will conserve EPA resources and provide the Agency with more
accurate information.
Enerplus (0041): Currently the Tribal Minor Source Review requires operators to submit a
registration within 90 days of initial production (IP) but the proposed FIP requires sources to
register 30 days prior to construction. The unpredictable nature of oil and natural gas production
makes the preconstruction registration requirement overly onerous and the resulting data likely
inaccurate.
Enerplus respectfully requests the EPA consider changing the proposed FIP language to allow
for post-construction registration as opposed to the proposed pre-construction registration. A pre-
construction registration presents a challenge to operators mainly because it is difficult to predict,
within a reasonable degree of certainty, what oil and natural gas production will be from a well
until production has commenced. A number of factors such as technology improvements,
downhole failures, infill drilling, and reservoir characteristics, will influence the initial
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productivity of a well and its associated emissions. Completions technologies are constantly
improving and increasing a wells initial production, which could potentially increase its
emissions. Conversely, a downhole failure during completions may result in a poorer well and
possibly lower its potential emissions. Additional uncertainty is created by drilling and
completing wells in different formations, at varying distances from one another, and in undefined
sweet spots. AII of these unknowns lead operators to essentially make an educated guess at
production and emissions rates prior to construction.
Operators will likely be conservative and, overestimate a wells production and potential to emit
to ensure registration values are not exceeded upon start up. Emissions estimates from these
registrations could then be used to develop inaccurate emissions inventories and even more
concerning, skew modeling results for actual conditions and impacts. The unrealistically high
emissions estimates will misrepresent the effects of oil and gas to the public and other agencies.
In order to provide accurate information, operators will have to amend registrations post-
construction but the proposed FIP language limits a modification to physical changes and
increases in emissions. If the EPA chooses to stay with the provision requiring pre-construction
permitting, Enerplus respectfully requests the agency provide a mechanism for revising
emissions downward, post construction when no modification or physical change has occurred.
Although post-construction registration updates are a possible solution to the imprecise
preconstruction registration data, Enerplus prefers the EPA consider revising the proposed FIP to
require post-construction registration thereby limiting duplicative work for both operators and
the agency.
In addition, this will align permitting processes on Indian lands with post-construction permitting
allowed by states adjacent to those Indian lands. States have recognized the importance of post-
construction permitting, EPA has approved those permitting processes through state SIPs, and
this request for post-construction permitting would not disadvantage Tribal lands.
Western Energy Alliance (0045): Pre-Construction Registration is Unworkable - The inherently
unpredictable nature of oil and natural gas production makes the pre-construction requirement
proposed by EPA a burdensome requirement that will be of limited use to EPA and confusing to
the public.
First, it is important to note that operators are unable to accurately determine their PTE prior to
construction. A number of variables, some known and some unknown, will dictate how a well
comes online and the level of emissions associated with production. For example, operators are
constantly evaluating completion activities with an eye toward innovation. Within even a short
amount of time, an operator may develop a more efficient completion process that may increase
initial production and thereby potentially increase emissions. However, efficiencies may not be
discovered until after the new process is attempted (i.e. post-construction). Accordingly, pre-
construction registrations are essentially educated guesses.
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Pre-construction emission estimates are of limited use to EPA. Such estimates are not accurate
enough to be used in emission inventories and certainly cannot be relied on for the purposes of
air quality modeling.
Finally, the inaccurate information and confusion created by a pre-construction registration will
only be compounded when this information is made publicly available on EPA’s website.
Alliance members have observed instances where third parties have analyzed overstated PTE
estimates, treating those numbers as actuals, which has led to overstated evaluations of oil and
natural gas development’s impact on airsheds.
In order to provide EPA and others with more accurate actual data, the pre-construction
registration will need to be amended after construction once actual emissions have been
determined. This revision will require duplicative work by operators, which is inefficient, costly,
and offers no environmental benefit. Furthermore, EPA will be tasked with processing and
reviewing duplicative submittals.
As a solution to this problem, instead of preconstruction registration, we urge EPA allow
operators to register under the FIP by providing actual emissions data (based on the first thirty
days of production) due within ninety days of the first date of production. A similar practice is
already allowed by EPA under the existing NSPS OOOO rules. Several states also acknowledge
the value in post-construction registration and/or permitting of oil and natural gas production
facilities.
In Wyoming, oil and natural gas operators may commence operation and modification of a
facility prior to obtaining an Air Quality Permit under Wyoming Air Quality Standards and
Regulations, Chapter 6, Section 2, so long as the operator satisfies certain emission control
requirements outlined in Wyoming Department of Environmental Quality’s Oil and Gas
Production Facilities, Chapter 6, Section 2 Permitting Guidance (last revised September 2013).
In Colorado, emission information related to new/modified oil and natural gas exploration and
production operations (well site and associated equipment) is not required to be submitted to
Colorado’s Air Pollution Control Division until “after exploration and/or production drilling,
workovers, completions and testing are finished.” See Air Quality Control Commission
Regulation No. 3, Part A, Section II.D.1.111. In allowing the submission of emission data post-
construction, Colorado’s Air Quality Control Commission noted:
Oil and gas exploration activities are activities for which it is difficult for the owner or
operator to estimate what emission equipment will be required, and therefore what
emissions will occur, until the exploration activities are already underway, and near
completion. For this reason, the Air Pollution Control Division (Division) has extended a
temporary exemption from APEN and permit requirements for such activities. Before
commencing exploration activities, the source must notify the Colorado Oil and Gas
Conservation Commission (COGCC). In this way, the Division is aware of the activities
and will be able to address any concerns that are raised by the public.
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Air Quality Control Commission Regulation No. 3, Part G, Statement of Basis, Section I.K
(adopted June 22, 1993).
The North Dakota Department of Health provides a similar, post-construction registration
process for operators in North Dakota. A completed oil and natural gas well registration form
and gas analysis must be submitted to the Department of Health within ninety days of the
completion or recompletion of a well. North Dakota Century Code Chapter 33, Section 15-20-02.
The Department of Health recognizes that:
…emissions associated with the exploration and production of O&G resources cannot be
predicted with any degree of precision or accuracy until after it is determined the oil or
gas well will actually produce and site specific production data are collected and known.
Therefore, unlike other stationary sources for which projected emissions upon startup can
be estimated in advance for purposes of pre-construction air permitting, emissions from
O&G exploration and production facilities are only known post-construction and
completion.1
Allowing oil and natural gas operators to provide emission information within ninety days of the
first date of production under the FIP will conserve EPA resources and provide the agency with
more accurate information.
American Petroleum Institute (API) (0046):
Proposed Language
Minor sources complying with §§49.101 to 49.105 for oil and natural gas production, as
defined in §49.102, must submit a registration form 30 days prior to beginning
construction that contains the information in §49.160(c)(2). The form titled “Registration
for New True Minor Oil and Natural Gas Sources and Minor Modifications at Existing
Oil and Natural Gas Sources” is available at:
http://www.epa.gov/air/tribal/tribalnsr.html or from EPA Regional Offices. This form is
submitted instead of the application form required in §49.160(c)(1)(iii)
[§49.160(c)(1)(iv)].
Issue
The current registration form requires that oil and gas operators quantify emissions and provide
production rates as part of the pre-construction registration process [§49.160(c)(2)].
Upstream oil and gas activities have many unique permitting challenges due to the uncertainty of
what the well will actually produce, if anything (e.g., sometimes wells are dry holes). As
previously mentioned, the potential for drilling a well that does not produce any oil and/or gas
was acknowledged by EPA in the FBIR FIP. Therefore, it is not possible to quantify emissions
with any certainty prior to completing the well and obtaining site-specific production data. Many
states such as Wyoming, Colorado, North Dakota, and Texas have acknowledged the unique
challenges presented for permitting well production sites. These states have established guidance
1 North Dakota Department of Health, Bakken Pool Oil and Gas Production Facilities Air Pollution Control
Permitting & Compliance Guidance (May 2, 2011).
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and mechanisms which allow operators to drill, complete, and initially produce the well before
determining what type of permit will be required. These states understand that these activities
often must be implemented in order to obtain the information necessary to characterize air
emissions and pursue an appropriate air permit.
North Dakota
“It should be noted that emissions associated with the exploration and production of
O&G resources cannot be predicted with any degree of precision or accuracy until after
it is determined the oil or gas well will actually produce and site specific production data
are collected and known. Therefore, unlike other stationary sources for which projected
emissions upon startup can be estimated in advance for purposes of pre-construction air
permitting, emissions from O&G exploration and production facilities are only known
post-construction and completion.”2
Colorado
“Oil and gas exploration activities are activities for which it is difficult for the owner or
operator to estimate what emission equipment will be required, and therefore what
emissions will occur, until the exploration activities are already underway, and near
completion. For this reason, the Air Pollution Control Division (Division) has extended a
temporary exemption from APEN and permit requirements for such activities. Before
commencing exploration activities, the source must notify the Colorado Oil and Gas
Conservation Commission (COGCC). In this way, the Division is aware of the activities
and will be able to address any concerns that are raised by the public. Once an owner or
operator has determined that an oil or gas well will be produced, and has filed well
completion information, the owner or operator must file an APEN and a permit
application within 30 days of that completion filing.”3
Wyoming
“At O&G facilities production rates and associated pollutant emissions are usually
unknown prior to start up. The AQD has tailored a permitting program allowing for the
start up or modification of O&G facilities prior to permitting provided specific emission
control requirements are met.”4
Texas
“What is the Start of Construction Date?
When determining the applicability of air authorizations under §106.352 and the oil and
gas standard permit, it is important to consider the Start of Construction of the project or
registration. The start of construction is the date on which construction begins at a site
after the well has been drilled and tested. The post-well test construction (i.e. building
pads for engines, installing platforms for tanks, etc.) is when the start of construction
2 North Dakota Department of Health Bakken Pool Oil and Gas Production Facilities Air Pollution Control
Permitting & Compliance Guidance dated 5/2/2011 Page 5. 3 Reg. 3 Part G Statement of Basis Page 246. 4 Wyoming Air Quality Division C6 S2 O&G Production Facilities Permitting Guidance dated September 2013 Page
3 of 76.
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should be considered. For sites that are not well tested (such as midstream sites or
gathering stations), the start of construction is considered the date on which equipment is
brought onsite or physical modifications are made at a site in order to install
equipment.”5
Under the proposed FIP, operators must obtain an air permit prior to constructing or modifying a
stationary source. As described above, well production sites have unique challenges in estimating
emissions before site-specific data can be obtained. Accordingly, the requirement to have
“permit-in-hand” effectively limits the usefulness of the proposed FIP as a streamlined
permitting approach because operators will not have definitive site-specific information to
accurately estimate emissions or production rates and be able to make the appropriate
representations in the registration application.
As a consequence, the proposed O&G FIP would not meet core streamlining objectives:
1. Minimize the time required to obtain authorization to construct and operate facilities;
and
2. Reduce the burden of application processing by the permitting agencies for similar
sources.
After starting up a well, operators would be forced to almost immediately file registration
modification packages to correct and/or supplement the information submitted with the pre-
construction registration. This iterative permitting approach would increase the backlog and
burden to EPA permitting departments and eliminate core benefits to a streamlined permitting
program. This approach would add confusion for the public and create uncertainty in whether the
FIP appropriately addresses the industry if a large volume of sites are continuously submitting
modifications.
Recommendation
Registration under the proposed FIP should consist of a two-part process:
Part 1 should allow the owner or operator to register the facility under the O&G FIP without
having to supply information that is not available before the well has been completed and
production data has been obtained. The “Registration for New Oil and Natural Gas Sources and
Minor Modifications at Existing Oil and Natural Gas Sources” form should be modified to
remove information not available prior to initial production such as material throughputs,
production data, and emission estimates. Part 1 of the submittal should focus on the owner and
operator information, well location description, production equipment anticipated to be installed,
and the anticipated first date of production. Part 1 registration should be submitted 30 days prior
to the anticipated first date of production and should satisfy all preconstruction requirements.
Part 2 of the process would require the owner or operator to supply information on emissions and
production rates as part of a notification process within 60 days after first date of production as
that date is reported as part of the mineral rights royalty notification processes under the
5 Texas Commission on Environmental Quality Commence Construction Guidance for O&G operations.
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Department of Interior. To facilitate this information, API proposes to create a new notification
form (see attachment A). API also proposed changes to the forms to remove actual emissions
data and to submit the projected allowable from the equipment, based on the initial production. If
EPA needs to quantify actual emissions, the information will only be accurate through an
emission inventory, versus utilizing data submitted with the permit application, due to the actual
emissions decreasing over time.
API recommends modifying 49 CFR 49.160(c)(1)(iii) as follows:
Minor sources complying with §§49.101 to 49.105 for oil and natural gas production, as defined
in §49.102, must submit Part 1 of the registration form 30 days prior to first date of production
beginning construction that contains the information in §49.160(c)(2). The form titled
“Registration for New True Minor Oil and Natural Gas Sources and Minor Modifications at
Existing Oil and Natural Gas Sources” is available at:
http://www.epa.gov/air/tribal/tribalnsr.html or from EPA Regional Offices. This form is
submitted instead of the application form required in §49.160(c)(1)(iii). Part 2 of the registration
form must be submitted 60 days after the first date of production. The combination of the Part 1
and Part 2 submittals will satisfy the requirements in §49.160(c)(2) [§49.160(c)(1)(iv)].
The rule should make clear that, if a change in permitting approach is needed as a result of the
newly available information (e.g., a synthetic minor permit is needed for a well that previously
was anticipated to be a true minor source), time will be provided to obtain the needed permit and
that the affected source will not be considered in violation of the permitting program solely by
virtue of having to obtain a different permit due to the newly available information. Such an
approach is well within EPA’s authority under the law because, under these unique
circumstances, it would be impossible prior to construction to accurately characterize emissions
from the source. It would be unreasonable and unlawful to construe the CAA pre-construction
permitting programs to impose liability on an affected source in a situation where neither EPA
nor the source has adequate information to characterize the source until after well production
begins.
American Petroleum Institute (API) (0046): [On pages 28 through 40 of their written
comments, API submitted “Attachment A - API’s Recommended Registration Forms – Part 1
and Part 2”. This attachment contains API’s suggested changes for the form for General Facility
Information and Emission and Production Information.]
American Petroleum Institute (API) (0046): To address the unique challenges of permitting
upstream well production sites, API recommends that the EPA provide a mechanism to allow
operators to drill, complete, and initially produce from gas and/or oil wells to obtain the
information necessary to accurately estimate emissions and apply for appropriate air permits.
API believes it is in the best interest of the operators, EPA, and the public to ensure emission
representations are accurate. In addition to creating confusion and burden, unsupported emission
estimates may incorrectly be used for modeling exercises and other impact analyses.
More importantly, the proposed approach would put many operators in an impossible
compliance situation because emissions information needed to accurately determine permitting
requirements would in many cases not be available until after the well is completed. In this
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situation, EPA has ample authority to devise a two-step permitting process where an initial
permit is obtained based on available information and then, as needed, that permit is revised or
amended once the properties of the well are actually known. Permitting in this manner can
reasonably be accommodated under the expansive scope of §110(a)(2)(C).
American Petroleum Institute (API) (0046): Additionally, it is more logical for production sites
to submit their registration 30 days prior to the first date of production and not 30 days prior to
construction. This is the most effective timeline as drilling or surface equipment installation can
occur well ahead of production. If registration was submitted 30 days prior to first date of
production, EPA can anticipate that the post-construction registration will be submitted in 90
days.
American Petroleum Institute (API) (0046): Finally, for oil and gas emissions sources the terms
“total allowable emissions” and “total actual emissions” do not accurately represent emissions.
Emissions from oil and gas production are dictated by the production of the well, which declines
over time. The production rates and the pressure of the well peaks after the well is drilled and
declines rapidly at the beginning and continues to decline over time as the reservoir is depleted
or drained. Unlike a plant that is designed for a maximum throughput, which is used to calculate
a “total allowable emission” rate, production facilities are limited by what the well produces,
which is a natural source that the operator does not have control over.
SLR International Corporation and Ultra Resources, Inc. (0051): The requirement to initiate
advance review in order to obtain approval of coverage prior to beginning construction
undermines the utility of the GP or PBR process and is unworkable for the oil and gas industry.
EPA should develop a streamlined approach that does not require a permittee to obtain
preconstruction approval 30 to 90 days prior to beginning construction. Colorado’s GP process
for example provides coverage under terms and conditions of the promulgated GP for qualifying
sources immediately upon submittal of a notice requesting coverage under the GP.
On August 1, 2012, EPA promulgated the Fort Berthold Indian Reservation (FBIR) FIP “to
establish enforceable control requirements for reducing VOC emissions from oil and natural gas
production activities on the FBIR in North Dakota.” . . . “[P]romulgating these Federal
regulations addresses an important initial step to fill a regulatory gap with regard to controlling
VOC emissions from oil and natural gas operations on the FBIR. 77 FR 48881. EPA noted
“[O]wners and operators of oil and natural gas operations producing from the Bakken
Pool on the FBIR are potentially subject to the Federal preconstruction permitting
requirements found in the Federal rules at 40 CFR 52.21 (Prevention of Significant
Deterioration of Air Quality), and 40 CFR 49.151 through 49.161 (Federal Tribal NSR
Rule). However, on the FBIR only NSPS OOOO and NESHAP HH provide legally and
practicably enforceable VOC control requirements outside of the Federal pre-
construction permitting requirements. Further, NSPS OOOO only applies to new and
modified facilities and only to the oil storage tanks being utilized in the Bakken Pool
operations. Thus, most owners and operators of oil and natural gas activities producing in
the Bakken Pool must obtain preconstruction permits before production can begin, or if
they are not obligated to obtain a permit face no control obligations whatsoever.”
14
77 FR 48882.
Enerplus Resources (0058): Currently the Tribal Minor Source Review requires operators to
submit a registration within 90 days of initial production. The proposed rulemaking requires True
Minor Sources that elect to comply with the proposed FIP, to register their sources 30 days prior
to beginning construction.
Enerplus respectfully requests that EPA consider changing the proposed language to allow for
postconstruction registrations, as opposed to the proposed preconstruction registrations.
Preconstruction registrations present a number of challenges to operators because it is difficult to
predict oil and gas production and gas composition for an individual well or pad prior to startup.
Factors such as completions technology improvements, downhole failures, drilling into different
formations such as the Bakken or Three Forks in our case, infill drilling, and even continued
uncertainty in reservoir characteristics such as the extended sweet spots, can all influence the
well's productivity and the well's specific gas composition. This uncertainty leads operators to
essentially guess production and emissions rates if they are required to do a registration prior to
construction.
To be conservative we will likely overestimate our production and PTE to ensure registration
values aren't exceeded upon startup. This will result in registrations with emissions estimates
nowhere near actuals. The oil and gas industry has seen instances in the past where the PTE from
permits and registrations such as these were used to analyze oil and gas emissions in scientific
studies and, even more concerning, used for emissions modeling for actual conditions and
impacts. These unrealistically high emissions estimates will then misrepresent impacts of oil and
gas to the public and other agencies such as the Bureau of Land Management, Forest Service,
and the U.S. Fish and Wildlife Service.
A possible solution to this issue would be to allow operators to update their registration after
startup; but under the current proposed Indian Country Minor Source Review FIP, a modification
is limited to a physical change or to an increase in emissions. There are currently no provisions
to revise the FIP registration emissions downwards post- construction using actual emissions. If
the EPA chooses to stay with provisions requiring preconstruction permitting, Enerplus
respectfully requests the EPA provide operators the ability to adjust the FIP registrations
downward, postconstruction.
In addition to the complications with preconstruction estimates, the EPA's proposed requirement
for preconstruction registrations in Indian Country is inconsistent with oil and gas regulations in
surrounding states. For example, the North Dakota Industrial Commission requires a facility
register within 90 days of initial production, an example of a postconstruction registration. Even
federal regulations such as Quad O allow operators the ability to determine PTE within 30 days
of first production, another example of using actual test figure emissions. Regulations like these
acknowledge the need for actual data in order for one to provide an accurate emissions estimate.
The inconsistency between the proposed Indian Country FIP and other federal and state oil and
gas permitting requirements poses a disadvantage to tribal members and tribal operators on a
reservation where mineral royalties are a crucial source of income for the tribe and critical to
their economic development and self-sufficiency.
15
In summary, Enerplus requests the EPA to revise the Indian Country Minor Source language to
either provide for postconstruction registrations in order to be consistent with the states and Quad
O; or make it publicly clear that the provided preconstruction emissions are overestimates and
not representative of actual emissions and therefore should not be used for modeling or scientific
analysis. If the EPA decides to stick with preconstruction registrations, please allow operators
the ability to update them after production without a physical change or increase in emissions, in
order for them to more accurately reflect emissions.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #1: Five commenters (0038, 0041, 0045, 0046, 0051), expressed concern about the
proposed pre-construction requirements and the difficulty in determining potential to emit (PTE)
before a well starts production due to the unpredictable nature of well development and
productivity. Two commenters (0041, 0045) stated the requirement is burdensome and would
lead to inaccurate data due to the unpredictable nature of oil and natural gas production.
Several commenters (0038, 0041, 0045) thought that pre-construction estimated emissions would
be of limited value to the EPA and would create confusion for the public once released or used in
modeling the effects of oil and natural gas production. One commenter noted that the pre-
construction requirements limit the usefulness of the proposed FIP because owners/operators will
not have definitive source-specific information before production begins.
One commenter (0041) requested that if the EPA were to retain the pre-construction
requirements, then the EPA should provide a mechanism for revising emissions estimates after
actual emissions are known.
Several commenters (0038, 0045, 0046, 0051) pointed to rules or state permitting programs that
require post-construction information to be submitted, rather than pre-construction. For example,
the Federal Indian Country Minor New Source Review (NSR) rule requires operators to submit
registration forms within 90 days of initial production. Several commenters pointed to state
requirements, which acknowledge the unique challenges of permitting well production sites.
Wyoming allows operation prior to permitting as long as the operator satisfies certain emission
control requirements. In Colorado, emissions information is not required to be submitted until
after drilling, workovers, completions, and testing are completed. North Dakota also has
owners/operators submit the oil and natural gas well registration form within 90 days of
completion of a well. Commenters believe that providing information after the well begins
production will conserve the EPA’s resources and provide the EPA with more accurate
information, as well as align permitting processes on Indian lands with state permitting processes
on adjacent lands.
As an alternative to pre-construction information, two commenters (0038, 0045) suggested that
the EPA allow owners/operators to provide actual emissions data based on the first 30 days of
production, due to the EPA 90 days after startup, similar to 40 CFR part 60, subpart OOOO.
16
As another alternative to providing pre-construction information, one commenter suggested a
two-part approach:
Part 1: 30 days prior to the anticipated first date of production, submit owner/operator
information, well location description, production equipment anticipated to be installed, and the
anticipated first date of production.
Part 2: Within 60 days after first date of production, supply information on emissions and
production rates as part of a notification process. The commenter requested 60 days as that date
is used as part of the mineral rights royalty notification processes under the Department of
Interior.
The same commenter (0046) submitted revisions to the draft registration form that we made
available with the September 2015 proposed rule. The commenter asked the EPA to remove
actual emissions data and to require operators to submit projected allowable emissions from the
equipment, based on the initial production. The commenter stated that if the EPA needs to
quantify actual emissions, the information will only be accurate through an emission inventory,
versus using data submitted with the permit application, due to the actual emissions decreasing
over time.
Response #1: The EPA has revised the Federal Indian Country Minor NSR rule and the
registration form to incorporate a two-step registration process for oil and natural gas true minor
sources locating or expanding in Indian country, as suggested by commenters. Generally, we
prefer to receive registration forms complete with source and emissions information prior to
construction, as we proposed and as required in §49.160 of the Federal Indian Country Minor
NSR rule for other source categories. However, we recognize the unique nature of the oil and
natural gas industry and believe in this instance a two-part registration process is warranted.
The Part 1 Registration Form will be due 30 days before the source begins construction. The Part
2 Registration Form will be due within 60 days after the “startup of production,” in accordance
with the subpart OOOOa definition of startup of production. (For the Part 2 Registration Form,
we are adding the definition for “Startup of production” to §49.152(d), which points directly to
the term as defined under 40 CFR part 60, subpart OOOOa.) Sources must determine the
potential for emissions within 30 days after startup of production, information which is required
as part of the Part 2 Registration Form. The EPA has selected 60 days as the submittal date for
the Part 2 Registration Form – the date requested by the commenter – as that timeframe will
allow sufficient time for sources to assemble the emissions information required as part of the
Part 2 Registration Form and to submit it to the EPA.
The control requirements from the eight New Source Performance Standards (NSPS) and
National Emission Standards for Hazardous Air Pollutants (NESHAP) standards in this FIP will
apply during production (the six standards included in the original proposal and two standards
being added in the final rule). The owner/operator must account for emissions from startup of
production as required in the Part 2 Registration Form submission. We disagree with the
commenter about the type of emissions information that must be submitted with the registration
form. Pursuant to §49.160 of the Federal Indian Country Minor NSR rule, sources are required to
17
submit allowable and actual emissions, not just allowable, as requested by the commenter. The
owner/operator should calculate an estimate of the actual annual emissions using estimated
operating hours, production rates, in-place control equipment, and types of materials processed,
stored, or combusted during the upcoming consecutive 12 months.
The source, as documented by owners/operators should use the definition in the EPA’s
rulemaking on “Source Determination for Certain Emission Units in the Oil and Natural Gas
Sector”6 in defining each source on its registration form.
1.2 Comments Related to Tribal Sovereignty and the Definition of Indian
Country in 40 CFR 49.152
Marrs (0027): The intentions of the EPA in this particular instance would likely provide better
protections than TIPs in existence, proposed, or otherwise. However, there is a history of pseudo-
sovereignty for those living in Indian country that cannot be ignored.7 An extreme example of
the danger of such loopholes in tribal versus EPA authority reared its head recently in North
Dakota, where the tribal chairman, Tex Hall, of the Mandan, Hidatsa, and Arikara Nation wanted
to achieve “sovereignty by the barrel” by allowing oil companies, under relatively no tribal
oversight or EPA requirements, to create a massive oil operation on tribal land. The tribal
chairman essentially opted not to enforce tribal environmental regulations, which had previously
been developed. The result has been pollution, crime, and corruption, with little of the oil
revenue actually improving the day-to-day lives of tribal members.8
Again, this example is extreme, and it should be noted that tribal leaders are not presumed to
behave in the way of Mr. Hall but there is an obvious need for more federal oversight should the
infrastructure of the tribe be ill-equipped to deal with powerful oil and gas interests. It would
appear that this proposed rule would aid in the regulation of minor sources, which, when
accumulated, would still have a negative impact on the health of American Indians located in
Indian country. The EPA appears, through this proposed rule, to understand the potential for
unleashing mass industry on tribal lands without tribal authorities having the ability to properly
regulate the industry on their own. The EPA would be wise in continuing to consider this
regarding oil and natural gas exploration in Indian country, while maintaining a tribe’s choice on
who to do business with, as well as the relative autonomy to create their own air pollution plans.
Ute Indian Tribe (0039): The Tribe agrees with the main theme of the Environmental Protection
Agency's (EPA) proposed rulemaking entitled Review of New Sources and Modifications in
Indian Country: Federal Implementation Plan for Managing Air Emissions from True Minor
Sources Engaged in Oil and Natural Gas Production in Indian Country (FIP). The proposed rule
or FIP is intended to protect the Reservation's air shed while allowing for streamlined permitting
of minor oil and gas sources. However, we ask that the Environmental Protection Agency (EPA)
6 “Source Determination for Certain Emission Units in the Oil and Natural Gas Sector,” signed May 12, 2016,
http://www.epa.gov/airquality/oilandgas/actions/html. 7 See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). (A more recent case to address the state
of tribal sovereignty) 8 Deborah Sontag and Brent McDonald, In North Dakota, a Tale of Oil, Corruption, and Death, New York Times,
(December 28, 2014). Available at http://www.nytimes.com/2014/12/29/us/in-north-dakota-where-oil-corruption-
and-bodiessurface.html?_r=0
18
achieve this goal in a manner that also promotes tribal sovereignty, authority, self-determination,
and our ability to develop our resources to benefit our members.
The Tribe relies on its oil and gas development as the primary source of funding for our tribal
government and the services we provide. We use these revenues to govern and provide services
on the second largest reservation in the United States. Our Reservation covers more than 4.5
million acres and we have about 3,000 members living on the Reservation. The Tribe is also a
major employer and engine for economic growth in northeastern Utah.
The Tribe takes an active role in the development of its resources, however, despite our progress,
the Tribe's ability to fully benefit from its resources is often limited by the federal agencies
regulating oil and gas development on the Reservation. In order to avoid these limits the Tribe
asks that EPA work hard to implement its proposed rule in a manner that recognizes that Indian
lands are not public lands. This will require EPA's careful attention to developing its rule and
implementing the rule in a manner that does not undermine our governmental authority and our
ability to develop our resources to benefit our members.
Ute Indian Tribe (0039): The Tribe is very concerned about EPA's proposal to revise the
definition of Indian Country for the purposes of this rule. The Tribe, like many tribes, is
surrounded by state and county governments that seek to challenge our jurisdictional authority.
EPA should be extremely careful that its efforts to regulate air quality in Indian Country do not
result in court decisions that reduce tribal jurisdiction over portions of Indian Country. The Tribe
recommends further consultation with tribes on this issue, as well as with the Department of
Justice, well before EPA attempts to finalize this rule.
In short, before EPA made a distinction years ago between on-reservation and off-reservation
Indian Country for the purposes of a tribe assuming Clean Air Act authority, EPA should have
considered the implications of this distinction. From a tribal perspective there is no distinction.
Tribal lands, allotments and dependent communities are all under tribal jurisdiction and
authority. Tribes exercise jurisdiction over these lands through existing tribal sovereignty and in
accordance with numerous Federal programs that affirm tribal authorities and tribal self-
determination over these lands and areas.
To minimize any additional impacts from EPA's faulty distinction in the proposed rule, first,
EPA should be cautious of how the rule appears. By restating the definition of Indian Country in
the rule, it appears that EPA is defining the term. Of course, EPA cannot change the definition of
Indian Country through the proposed rule. The term Indian Country was defined by Congress in
statute at 25 U.S.C. § 1151. EPA's regulations cannot change or modify this definition. To avoid
any confusion, EPA should revise the rule to make clear that Indian Country is statutorily
defined.
The Tribe recommends that EPA delete from 40 CFR § 49.167 its recitation of the definition of
Indian Country. Rather than repeating 25 U.S.C. § 1151 in regulatory text, EPA should simply
refer readers to the statute. In other words, EPA's regulatory text would read:
Indian Country is defined in 25 U.S.C. § 1151.
19
By simply referencing the statute, rather than appearing to change the definition of Indian
Country, EPA will help to clarify the application of the proposed rule and its relationship to
Indian Country which has meaning far beyond EPA's proposed rule.
In addition, the proposed and final rules should not state that EPA is "revising the definition of
Indian Country." EPA is doing no such thing. As a result of Oklahoma Dept. of Environmental
Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014), EPA is required to consider how it will apply the
proposed rule in certain portions of Indian Country, but EPA is not revising the definition of
Indian Country.
In other words, the Oklahoma case is not about the definition of Indian Country, but the process
EPA is using to apply the proposed rule to certain parts of Indian Country. The Tribe
recommends that EPA remove all references to revised definitions of Indian Country from the
proposed rule. Rather than purporting to revise the definition of Indian Country, the Tribe
suggests that EPA include a new section discussing the applicability of the proposed rule.
Ute Indian Tribe (0039): The Tribe generally supports EPA's proposed language that the rule
would apply to "all Indian reservation lands where no EPA-approved program is in place and all
other areas of Indian country where no EPA-approved program is in place and over which an
Indian tribe, or the EPA, has demonstrated that a tribe has jurisdiction." While this is a good
start, EPA should make clear that a tribe's jurisdiction does not need to be "demonstrated" to
exist. EPA should also be clear that the term jurisdiction is not just referring to Clean Air Act
jurisdiction, but all forms of jurisdiction.
The Tribe also recommends that EPA address in the rule the underlying source of the problem-
EPA procedures for recognizing tribal authority to implement the Clean Air Act. The distinction
that EPA created in its regulations between on-reservation and off-reservation Indian Country
was not included in the Clean Air Act and is not consistent with how tribes exercise authority
over their lands. Most important, EPA should not require tribes to demonstrate authority over
off-reservation areas. These areas were included in the definition of Indian Country for a reason-
because tribes exercise authority over these areas.
American Petroleum Institute (API) (0046):
Proposed Language
EPA proposes to modify the definition of Indian country in 40 CFR 49.152 to read as follows:
[new material in bold]
Indian country, as defined in 18 U.S.C. 1151, means the following:
1) All land within the limits of any Indian reservation under the jurisdiction of the
United States government, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation;
2) All dependent Indian communities within the borders of the United States whether
within the original or subsequently acquired territory thereof and whether within or
without the limits of a state; and
20
3) All Indian allotments, the Indian titles to which have not been extinguished, including
rights of way running through the same.
4) For purposes of this rule, references to Indian country include all Indian
reservation lands where no EPA-approved program is in place and all other
areas of Indian country where no EPA-approved program is in place and over
which an Indian tribe, or the EPA, has demonstrated that a tribe has
jurisdiction.
Issue
The EPA should not be vested with power to make determinations or demonstrations about
Tribal jurisdiction. Any such demonstration of jurisdiction should be left to the sovereign whose
jurisdiction is being asserted. In this case that sovereign is the Tribe, not the federal government
or an agency of the federal government. Although EPA has indicated that this should only impact
Trust lands in Oklahoma, Tribal allotments would also be impacted by the change in definition.
Recommendation
EPA proposes to modify the definition of Indian country in 40 CFR 49.152 to read as follows:
Indian country, as defined in 18 U.S.C. 1151, means the following:
(1) all land within the limits of any Indian reservation under the jurisdiction of the
United States government, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation;
(2) all dependent Indian communities within the borders of the United States whether
within the original or subsequently acquired territory thereof and whether within or
without the limits of a state and/or
(3) all Indian allotments, the Indian titles to which have not been extinguished, including
rights of way running through the same
(4) For purposes of this rule, references to Indian Country include all Indian reservation
lands where no EPA-approved program is in place and all other areas of Indian
country where no EPA-approved program is in place, for which a Tribal
implementation plan approved by EPA pursuant to 40 CFR part 51 is not in effect,
and over which an Indian Tribe, or the EPA, has demonstrated that it has
jurisdiction.
Rollie Wilson (0048): Hi Pat (Childers), During our meeting last week we had a brief
conversation about EPA’s proposed FIP for oil and gas minor sources in Indian Country - I hope
I said all that right. The Tribe is concerned about a change in the definition to Indian Country,
although I did not do a good job recalling the issue for the meeting participants. It appeared at
the meeting that the EPA folks present said that there would be no change to the definition
and/or they supported the Tribe’s view. But, when I’ve pulled up the language again, it seems to
me that there is a potential change. I have not figured out yet whether the Tribe thinks it is good
or bad. But, with a better recollection of the information below, can EPA tell us a little more
about what’s going on here and why this is being proposed to be added to the definition. Thanks,
Rollie
21
The revised definition of Indian Country adds a new subpart 4 to its recitation of the Indian
criminal jurisdiction definition of Indian country. New subpart 4 in 40 CFR Sections 49.152;
49.167 provides that:
Indian country, as defined in 18 U.S.C. 1151, means the following as applied to this program:
(4) For purposes of this rule, references to Indian country include all Indian reservation lands
where no EPA-approved program is in place and all other areas of Indian country where no EPA-
approved program is in place and over which an Indian tribe, or the EPA, has demonstrated that
a tribe has jurisdiction. 80 FR 56575.
……
At the moment my thinking is that we need to be very careful how your rule interacts with the
definition of Indian country and perhaps extracting Indian country somewhat from the rule. For
example, rather than rephrasing the definition just cite to it. And in your new language that you
all added to deal with the OK case (Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d
185 (D.C. Cir. 2014)), I read the last word "jurisdiction" to mean "jurisdiction for any purpose."
In other words, could be regulatory or criminal or whatever jurisdiction. Tribal jurisdiction just
exists. You don't have to prove it exists or demonstrate it exists. We need to make sure the rule
does not suggest that the jurisdiction does not already exist. Thanks for your consideration.
Rollie
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #2: Several commenters (0039, 0046, 0048) expressed concern about the EPA’s
proposed definition change for the term Indian country as used in the rule. Two commenters
(0039, 0046) disagreed with the fourth paragraph added to the definition of Indian country and
noted that the EPA should not be vested with power to make determinations or demonstrations
about tribal jurisdiction and that any such demonstration of jurisdiction should be left to the
sovereign whose jurisdiction is being asserted. These commenters assert that although the EPA
has indicated that this should only impact trust lands in Oklahoma, tribal allotments would also
be impacted by the change in definition. One commenter (0046) recommended that the definition
of Indian country include Indian reservation lands for which a tribal implementation plan (TIP)
approved by the EPA pursuant to 40 CFR part 51 is not in effect, and over which an Indian tribe
has demonstrated that it has jurisdiction.
One commenter (0039) stated that the EPA should be cautious of how the rule appears. By
restating the definition of Indian country in the rule, it appears that the EPA is defining the term.
The commenter stated that, of course, the EPA cannot change the definition of Indian country
through the proposed rule because the term Indian country was defined by Congress in statute
and the EPA's regulations cannot change or modify this definition. The commenter suggested
that the EPA should make it clear that Indian country is already statutorily defined and simply
cross reference the relevant statute.
The commenter (0039) further states that the proposed and final rules should not state that the
EPA is "revising the definition of Indian Country." The commenter states that the EPA is doing
22
no such thing. As a result of Oklahoma Department of Environmental Quality (ODEQ) v. EPA,
the EPA is required to consider how it will apply the proposed rule in certain portions of Indian
country, but the EPA is not revising the definition of Indian country. In other words, ODEQ v.
EPA is not about the definition of Indian country, but rather the process the EPA is using to
apply the proposed rule to certain parts of Indian country. The commenter recommends that the
EPA remove all references to revised definitions of Indian country from the proposed rule.
Rather than purporting to revise the definition of Indian country, the commenter suggests that the
EPA include a new section discussing the applicability of the proposed rule.
Response #2: Regarding the commenters who expressed concern about the EPA’s proposed
changes to the sections of the rule that define Indian country, the EPA acknowledges the
potential for confusion given that Indian country is a statutorily defined term at 18 U.S.C. 1151.
We note that the EPA did not intend to, nor could we, change or in any way affect the statutory
definition at 18 U.S.C. 1151 or the manner in which that statute is interpreted and applied for
other purposes. Rather, we intended simply to address a 2014 decision of the D.C. Circuit
(ODEQ v. EPA) that addressed the scope within Indian country of the EPA’s authority to
administer the Federal Indian Country Minor NSR rule – and, thus, the FIP in this action – and
the Federal Indian Country Nonattainment Major NSR rule.9 In that decision, the court
invalidated the rules as applied to non-reservation areas of Indian country, unless the EPA or a
tribe demonstrates that a tribe has jurisdiction over such a non-reservation area. The court did not
disturb application of the rules to Indian reservations. Our intent was, thus, not to alter the
applicable definition of Indian country, but instead to address the scope of applicability of the
rules within Indian country in light of the D.C. Circuit decision. To avoid potential confusion, we
have altered the manner in which we are addressing this court ruling.
In the final rule, we have left the Indian country definitions largely intact and simply provided
cross-references within the definitional sections of both rules – §§49.152 and 49.167 – stating
that the geographic scope of the rules’ applicability will be as specified in the program overview
sections of both rules – §§49.151 and 49.166. We have then addressed the limitation imposed by
the court ruling (i.e., that the rules will only apply in non-reservation areas of Indian country
where there is a demonstration by a tribe or the EPA acting on behalf of a tribe of tribal
jurisdiction over such area) in the program overview sections, which are more appropriate
provisions in which to address this issue. These changes do not alter the substance of the
revisions the EPA had proposed to address the ODEQ v. EPA ruling. Instead, they simply move
the needed revisions to more appropriate locations in the rules, and, thus, avoid confusion about
the applicable definition of Indian country as a general matter. Further, the EPA notes that the
regulatory revisions finalized today to address the ODEQ v. EPA decision apply solely to the
Federal Indian Country Minor NSR rule – and, thus, the FIP in today’s action – and the Federal
Indian Country Nonattainment Major NSR rule. They are not intended to apply to any other
matter outside the scope of these rules.
In addition, while the EPA acknowledges the commenter’s statement that an Indian tribe’s
jurisdiction should not need to be demonstrated to exist, the EPA notes that, consistent with the
ODEQ v. EPA decision, a demonstration of tribal jurisdiction (either by the EPA or by an Indian
9 Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014).
23
tribe) would need to be made to support application of the Federal Indian Country Minor NSR
rule in non-reservation areas of Indian country.
The EPA notes that the distinction between reservations and other areas that may be under an
Indian tribe’s jurisdiction (i.e., non-reservation areas of Indian country) is derived from a CAA
tribal-related provision (CAA section 301(d)(2)(B)). This provision includes a delegation of
authority from Congress to eligible Indian tribes over their reservations, but expressly
distinguishes other areas within a tribe’s jurisdiction. For this reason, tribes seeking to administer
their own CAA-regulatory programs would need to demonstrate their jurisdiction over any non-
reservation area included in their application.10 By virtue of the ODEQ v. EPA decision, such a
demonstration of tribal jurisdiction must also be made (by a tribe or by the EPA) to support
application of the Federal Indian Country Minor NSR rule in such non-reservation areas of
Indian country.
Comment #3: Further, concerning the definition of Indian country, one commenter (0039)
disagreed with the EPA’s distinction between “on-reservation” and “off-reservation” Indian
country and contended that tribes exercise jurisdiction over these lands through existing tribal
sovereignty and in accordance with numerous federal programs that affirm tribal authorities and
tribal self-determination over these lands and areas. The commenter contends that the distinction
was not intended in the CAA and is not consistent with how tribes exercise authority over their
lands. Nonetheless, the commenter generally supports the fourth paragraph added to the
definition of Indian country, stating that the rule would apply to “all Indian reservation lands
where no EPA-approved program is in place and all other areas of Indian country where no EPA-
approved program is in place and over which an Indian tribe, or the EPA, has demonstrated that
a tribe has jurisdiction.” However, the commenter does not believe that a tribe’s jurisdiction has
to be “demonstrated” to exist.
Response #3: Regarding the comment on the EPA’s distinction between “on-reservation” and
“off-reservation” Indian country, the EPA disagrees with the suggested changes. The EPA’s
revisions reflect the holding in ODEQ v. EPA. The decision acknowledges that either a tribe or
the EPA can make such a demonstration of tribal jurisdiction over a non-reservation area of
Indian country. Although the EPA is not typically called upon to assess tribal jurisdiction in the
context of implementing a federal rule, it is appropriate for the EPA to make such determinations
where required. The EPA has experience reviewing tribal jurisdiction in other contexts, most
notably where tribes apply to administer regulatory programs under the EPA’s statutes. In light
of the ODEQ v. EPA decision, such jurisdictional assessments are also relevant for
implementing federal permitting under the Federal Indian Country Minor NSR rule in non-
reservation areas of Indian country.
Comment #4: One commenter (0039) acknowledged the EPA’s intent in the proposed
rulemaking to protect the reservation airsheds, while allowing for streamlined permitting of
minor oil and natural gas sources, and requested that the EPA achieve this goal by developing
and implementing the rule in a manner that promotes tribal sovereignty, authority, self-
10 For more information go to: “Indian Tribes: Air Quality Planning and Management,” U.S. Environmental
Protection Agency, 63 FR 7254, February 12, 1998, http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-
3451.pdf.
24
determination and a tribe’s ability to develop resources. The commenter emphasized that the
EPA should develop the proposed rule in a manner that recognizes that Indian lands are not
public lands.
Another commenter (0027) noted that the EPA appears in the proposed rule to understand the
concern for the oil and natural gas industry to be on tribal lands without tribal authorities having
the ability to properly regulate the industry on their own. The commenter encouraged the EPA to
recognize this potential situation while maintaining the tribe’s choice on who to do business
with, as well as retaining the tribe’s relative autonomy to create their own pollution plans. The
commenter acknowledged that the EPA’s intentions in the proposed rule would likely provide
better protections than any TIP.
Response #4: The EPA acknowledges that Indian country lands are not public lands and has
solicited tribal feedback on the development of a streamlined permitting process that allows for
tribes to develop resources on their lands. In doing so, the EPA seeks to protect air quality in
Indian country, while also recognizing the importance of oil and natural gas activity as an
important source of revenue for tribes, and has developed the FIP accordingly. Moreover, the
development of this FIP does not preclude tribes from requesting to assist the EPA with
administration of the FIP through a delegation agreement or from developing TIPs, which could
include different or additional pollution control plans that tribes feel are needed to preserve air
quality given the unique characteristics of their lands. No changes will be made in response to
this comment.
2.0 Comments Related to Implementation Issues
Southern Ute (0031): The Tribe requests that EPA clarify how numerical VOC emission
limitations will be applied through compliance with Subpart HH when the subpart has numerous
compliance options which often do not contain specific numerical emission limitations. The
proposed FIP would create enforceable VOC emission reductions for glycol dehydrators through
compliance with the emission limitations, monitoring, and testing requirements of 40 CFR 63,
Subpart HH (Subpart HH) using HAPs as a surrogate for VOCs. The Tribe seeks clarification on
how compliance with Subpart HH will fulfill the EPA's requirement in 40 CFR 49.154(c)(2) to
require a numerical emission limitation on the quantity, rate, or concentration for each regulated
NSR pollutant emitted by each affected emission unit for which such a limit is technically and
economically feasible.
Southern Ute (0031): The Tribe requests that EPA clarify how the proposed FIP will provide
practical enforceability when several of the six incorporated standards, such as 40 CFR 63,
Subpart HH, do not contain practically enforceable requirements. Rather than a FIP that will
force many sources to obtain site-specific permits (because of the lack of practically enforceable
requirements in the FIP's standards), the best permitting approach for Indian country is a general
permit or permit by rule. The FIP proposes to provide a streamlined, alternative approach to
satisfy the NSR permitting requirements through compliance with six incorporated EPA
standards while also ensuring air quality protection through requirements that are unambiguous
and legally and practically enforceable. However, because several of the standards do not contain
practically enforceable requirements, sources who wish to restrict their potential to emit will be
25
forced to obtain a site-specific permit. In this way, EPA's proposed FIP fails to accomplish an
important objective. A streamlined approach to obtain legal and practical enforceable emission
limitations protective of the NAAQS, such as a general permit or permit by rule mechanism, is
necessary to allow efficient and responsible economic development in Indian Country.
National Tribal Air Association (0032): The NTAA approves generally of the Proposed Rule.
The oil and natural gas industry is causing millions of tons of methane, volatile organic
compounds (VOCs), and hazardous air pollutants (HAPs) to be emitted into the air that are
harming human health and the environment, and speeding up climate change. The oil and natural
gas industry must be held accountable for these emissions. The Proposed Rule helps create this
accountability and helps to move the Obama Administration closer to its goal of reducing oil and
natural gas sector methane emissions 40-45% below 2012 levels by 2025.
Ute Indian Tribe (0039): The Tribe has a substantial interest in commenting on the ANPR
because energy development spurs job creation and generates revenue that funds the tribal
government and the services provided to tribal members on the second largest reservation in the
United States. The tribal government manages the Reservation through 60 tribal departments and
agencies including natural resources, land, fish and wildlife management, housing, education,
emergency medical services, public safety, and energy and minerals management. The Tribe is
also a major employer and engine for economic growth in northeastern Utah. Governmental
programs and tribal enterprises employ approximately 450 people, 75% of whom are tribal
members. Each year the Tribe generates tens of millions of dollars in economic activity in
northeastern Utah.
Ute Indian Tribe (0039): The Tribe serves as one of the most representative examples of how a
tribe has been able to use energy production to lift itself out of poverty and improve the lives and
well-being of its members through the revenues generated from its resources. The benefit of
having significant natural resources enables the Tribe to supplement shortfalls in federal funding
with revenues generated from oil and gas development to fund these vital tribal government
programs. These benefits have helped the Tribe improve its governmental efficiency and
effectiveness. Development also benefits the Tribe by stimulating economic development on the
Reservation, creating both jobs and tribal businesses. Many of these jobs are in the oil and gas
industry.
Ute Indian Tribe (0039): The Tribe takes an active role in the development of its resources as
the owner of Ute Energy Exploration & Marketing LLC. The Tribe is a working interest owner
in its oil and gas business as opposed to taking a passive role and only collecting royalties. Ute
Energy Exploration & Marketing LLC jointly owns, with Anadarko Petroleum Corporation, the
Chipeta gas processing and delivery plant in the Uintah Basin. Ute Energy Exploration &
Marketing LLC also has ownership interests in other midstream assets in the Uintah Basin.
American Petroleum Institute (API) (0046): API stated that the proposed oil and natural gas FIP
falls short in meeting several core objectives for permitting oil and gas sector facilities.
Successful resolution of these issues in the final rule will be needed to allow affected facilities to
use the FIP to satisfy permitting requirements on Indian lands. Otherwise, they would have to
revert to the burdensome and time-consuming case-by-case permitting process
26
American Petroleum Institute (API) (0046): Each of the proposals (NSPS OOOOa, Control
Techniques Guidelines, Source Determination), including this one, has potentially significant
impacts on our industry’s operations and, collectively, they have the potential to hinder our
ability to continue providing the energy our nation demands. These cumulative impacts must be
considered in conjunction with the impacts of the lowered ozone standards and the pending
Bureau of Land Management (BLM) methane rule, which has not yet been proposed and will
likely require costly methane controls for some of the very same emission sources. Our
organizations have collaborated well in the past and API remains committed to working with
EPA and the Administration to identify emission control opportunities that are both cost-
effective and, when implemented, don’t impact safety or hinder our ability to provide the energy
our nation will continue to demand for many years to come. Attached are our comments on the
“Review of New Sources and Modifications in Indian Country: Federal Implementation Plan for
Managing Air Emissions from True Minor Sources Engaged in Oil and Natural Gas Production”
as well as an executive summary.
American Petroleum Institute (API) (0046): The foundation of the proposed O&G FIP is still
based on site-specific reviews, which by definition will inhibit its streamlining capabilities. Left
unresolved, the air permitting obstacles mentioned in this comment package could place future
oil and natural gas development in Indian Country at a disadvantage to other options under state
jurisdiction where there are established programs to streamline air permitting for the industry.
American Petroleum Institute (API) (0046): We have prepared the following comment package
for the proposed O&G FIP. We note that API also submitted comments on the proposed
standards of performance for 40 CFR Part 60 New Source Performance Standards (NSPS)
Subpart OOOOa and the Source Determination rules. EPA should take into consideration how
the three separate rules will interact to ensure a workable regulatory structure for the oil and gas
sector going forward.
American Petroleum Institute (API) (0046): On July 1, 2011, the EPA established the federal
minor new source review (NSR) program in Indian Country designed to promote economic
development in Indian Country, while meeting air quality objectives.11 The federal minor NSR
permitting program is codified under 49 CFR 49.151 et seq. As part of this rulemaking, the EPA
established a permitting and registration deadline of March 2, 2016 for oil and natural gas
sources [§49.151(c)(iii)(B)]. Acknowledging the need to develop a streamlined permitting
process for the oil and natural gas sector, the EPA issued an Advance Notice of Proposed
Rulemaking (ANPR) on June 5, 2014 requesting input on the most efficient way to implement
the federal minor NSR program for oil and natural gas sources in Indian Country.
Many state regulatory agencies throughout the United States have developed minor NSR
programs designed to streamline air permitting for oil and natural gas sources. At the core of all
streamlined state minor NSR air permitting programs are the following objectives:
1. Minimize the time required to obtain authorization to construct and operate facilities;
2. Reduce the burden of application processing by the permitting agencies for similar sources;
11 FR 38748 dated 7/1/11.
27
3. Provide certainty and consistency of air permit conditions for similar sources;
4. Facilitate routine process changes without imposing permitting delays, and;
5. Provide a mechanism to obtain federally enforceable limits to limit emissions below major
source permitting requirements.
API emphasized the importance of these elements in previous comments12 on the Tribal NSR
rulemaking and the Petitions for Reconsideration dated August 30, 2011, November 4, 2011,
March 17, 2014, and August 20, 2014.
State of Utah, Office of Energy Development (0047): The oil and gas industry plays a vital role
in the high quality of life enjoyed in the Uinta Basin. As the main driver of economic
development in the Basin’s Tribal and rural communities, the oil and gas industry provides
crucial revenues to support local government services as well as thousands of high paying jobs.
The majority of the roughly 33 million barrels of oil and 360 billion cubic feet of natural gas
produced annually in the Uinta Basin occurs in Indian Country. Recent shifts in commodity
prices and market conditions have created significant challenges for the oil and gas industry.
These conditions have created a particularly sensitive period for investment in the oil and gas
industry, and recent declines are expected to accelerate. The State of Utah asks the EPA to make
the following changes to its Indian Country Minor New Source Review (ICMNSR) Nationwide
Federal Implementation Plan (FIP) for oil and gas that will allow for meaningful reductions in
emissions without placing unnecessary and costly new burdens on the oil and gas industry.
We are committed to working with the EPA to create a more workable, cost effective and
flexible ICMNSR and FIP that will facilitate significant emissions reductions without
unnecessarily encumbering the oil and gas industry operating in Tribal jurisdiction airsheds. Oil
and gas development in the Uinta Basin provides crucial government revenues, high-paying jobs
and economic opportunities. In order to establish permitting tools under the ICMNSR and FIP
that are practical, effective, and avoid unnecessary costs or delays, we request the EPA adopt the
recommendations outlined above.
The ICMNSR and FIP should also provide industry more flexible compliance options that are
more cost effective without compromising significant emissions reductions. For example, the
ICMNSR and FIP should include an early action program, as well as an option for portfolio-wide
emissions compliance. Considering the uncertainty surrounding ozone standard designations in
the Uinta Basin, an early action program would de-risk industry investments in emission
reductions by ensuring appropriate credit for those investments. A portfolio-wide approach
would provide many operators the needed flexibility to more efficiently and cost-effectively
achieve system-wide emission reductions that met regulatory goals.
Industrial Commission of North Dakota (0049): The proposed rule could have significant
impacts on North Dakota's ability to administer its oil and gas regulatory program. The State of
North Dakota intends to defend its sovereign jurisdiction over oil and gas regulation in any
manner necessary. The impacts of the proposed rule on North Dakota's ability to administer its
oil and gas regulatory program are explained below:
12 Footnote 1: See Docket No. EPA-HQ-OAR-2011-0151 and EPA-HQ-OAR-2003-0076.
28
Conflict with existing agreements between Three Affiliated Tribes and North Dakota: North
Dakota regulations for natural gas capture have been enforced on the Fort Berthold Reservation
under multiple tax and regulatory agreements between the state and tribes. The proposed rule
will increase the number and complexity of conflicts with North Dakota regulations and the
existing negotiated agreements.
The North Dakota Industrial Commission (NDIC) recommends that the proposed rule recognize
and give deference to existing state and tribal agreements for natural gas permitting and
regulation.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #5: One commenter (0031) requested that the EPA clarify how numerical Volatile
Organic Compound (VOC) emission limitations will be applied through compliance with 40
CFR part 63, subpart HH, when the subpart has numerous compliance options that often do not
contain specific numerical emission limitations. The commenter noted that the proposed FIP
would create enforceable VOC emission reductions for glycol dehydrators through the
requirements of 40 CFR part 63, subpart HH, using HAPs as a surrogate for VOCs.
Response #5: The FIP does not impose a separate VOC limit for glycol dehydration units that are
subject to 40 CFR part 63, subpart HH (i.e., independently of the FIP, the source will have to
comply with the HAP control requirements, which also effectively control VOC and may or may
not involve numerical emissions limitations). While the EPA recognizes that 40 CFR part 63,
subpart HH, specifies several different control requirements depending on several factors (e.g.,
major/area source status of the facility, actual natural gas throughput of the dehydrators,
urban/rural location), any dehydrators subject to those standards will satisfy compliance with the
FIP for those units by fully complying with the Maximum Achievable Control Technology
(MACT) standard. We have not made any changes in response to this comment.
Comment #6: One commenter (0046) stated that the proposed oil and natural gas FIP falls short
in meeting several core objectives for permitting oil and natural gas sector facilities. The
commenter stated that the foundation of the proposed FIP is still based on site-specific reviews,
which by definition will inhibit its streamlining capabilities, and that this poses an obstacle to
permitting. This could place future oil and natural gas development in Indian country at a
disadvantage compared to more streamlined options available under state jurisdictions.
Response #6: The EPA disagrees that the foundation of the proposed FIP is based on source-
specific permit reviews. While source-specific permits remain an option available to sources that
do not wish to comply with the FIP, apart from addressing threatened and endangered species
and historic properties, those sources that do wish to comply with the FIP need only register in
accordance with the provisions of §49.160(c)(1)(iv). This streamlined permitting mechanism
allows for sources to begin construction 30 days after submittal of the Part 1 registration
information. We have not made any changes in response to this comment.
29
Comment #7: One commenter (0031) requested that the EPA clarify how the proposed FIP will
provide practical enforceability when several of the six rules included in the proposed FIP, such
as 40 CFR part 63, subpart HH, do not contain practically enforceable requirements. The
commenter noted that, because several of the standards do not contain practically enforceable
requirements, sources that wish to restrict their PTE will be forced to obtain a source-specific
permit. The commenter stated that the proposed FIP would fail to achieve the objective of
providing sources a streamlined approach for obtaining legal and practically enforceable
emission limitations.
Response #7: A source has to be a true minor source to use the FIP. The FIP is not intended to
provide a mechanism for establishing synthetic minor sources. We have not made any changes in
response to this comment.
Comment #8: One commenter (a state agency) (0049) noted that North Dakota regulations for
natural gas capture have been enforced on the Fort Berthold Indian Reservation under multiple
tax and regulatory agreements between the state and tribes. The commenter stated that the
proposed rule will increase the number and complexity of conflicts with North Dakota
regulations and the existing negotiated agreements. One commenter stated that the proposed rule
could have significant impacts on their ability to administer their oil and natural gas regulatory
program, and recommended that the proposed rule recognize and give deference to existing state
and tribal agreements for natural gas permitting and regulation.
Response #8: The FIP adopted through this final action only applies to sources locating in Indian
country and does not impose any requirements on sources located on state lands. The EPA also
notes that the State of North Dakota has not been approved by the EPA to administer any
program under the federal CAA on the Fort Berthold Indian Reservation. The EPA notes that
there are no new requirements included as part of the FIP, only those rules already applicable to
oil and natural gas sources under existing federal NSPS and NESHAP rules are included. We
have not made any changes in response to this comment.
Comment #9: One commenter (0047) stated that the Federal Indian Country Minor NSR rule and
the FIP should provide industry more flexible compliance options that are cost effective without
compromising significant emissions reductions. The commenter suggested that the Federal
Indian Country Minor NSR rule and the FIP should include an early action program, noting that,
considering the uncertainty surrounding ozone standard designations in the Uinta Basin, an early
action program would remove the risk for industry investments in emission reductions by
ensuring appropriate credit for those investments. The commenter also suggested that the Federal
Indian Country Minor NSR rule and the FIP should include an option for portfolio-wide
emissions compliance, noting that a portfolio-wide approach would provide many operators the
needed flexibility to more efficiently and cost-effectively achieve system-wide emission
reductions that meet regulatory goals.
Response #9: Ozone Advance is the early action program that the EPA is offering to promote
local efforts aimed at reducing ozone.13 The program, which began in 2012, is available to states,
local governments, and tribes that are interested in working proactively and collaboratively with
13 For more information, go to: www.epa.gov/advance.
30
the EPA to select and implement measures and programs that may reduce ozone air quality
levels in attainment areas. Other stakeholders, such as industry, are encouraged to become
actively involved in these efforts. Ozone Advance will continue to be available in conjunction
with the Federal Indian Country Minor NSR rule, this FIP and any future, final FIPs developed
for specific areas. As appropriate, such FIPs could consider portfolio-wide options allowing
operators to reduce their emissions across entire tribal areas. We have not made any changes in
response to this comment at this time.
Concerning “credit”, the EPA cannot pre-approve State Implementation Plan (SIP)/TIP “credit”
for emission reductions in areas that are not the subject of a nonattainment designation.
However, early actions to improve air quality can both serve to prevent areas from becoming
nonattainment and better position an area to comply with the requirements associated with an
eventual nonattainment designation. For example, early emission reduction actions could
potentially receive “credit” in future SIPs/TIPs if an area is eventually designated nonattainment
with a Moderate or higher classification, either in terms of reflecting a lower baseline from
which additional reductions are needed to meet reasonable further progress goals or, if they
occur after the baseline year, as a measure that shows progress toward attainment.
If emission reductions occur after the baseline year, the area may take credit for those reductions
subject to Clean Air Act (CAA) requirements, such as demonstrating that the reductions are
surplus, quantifiable, enforceable, and permanent. The state or tribe would also need to meet any
other relevant requirement in CAA section 110 and/or section 172, and if the measure is
voluntary, the state or tribe would need to make an enforceable commitment to ensure that the
estimated emission reductions are achieved. Credit earned in this manner means that fewer
additional emission reductions will be needed to meet reasonable further progress goals and to
demonstrate attainment, thereby bringing the finish line of attainment with the ozone National
Ambient Air Quality Standards (NAAQS) closer.
2.1 Comments on Requirements Relating to Threatened or Endangered Species
and Historic Properties
QEP Resources, Inc. (0038): QEP is concerned about the jurisdictional overreach of the EPA
regarding requirements relating to threatened or endangered species and historic properties in the
proposed National FIP. As recognized in the proposal, an operator is required to obtain an
Application to Drill ("APD") on federal lands or lands held in trust by the federal government in
order to conduct any oil and gas production activities. In order to obtain the APD, the operator
must work with both the Bureau of Indian Affairs and Bureau of Land Management ("BLM") to
conduct the necessary consultations required under the Endangered Species Act ("ESA") and
National Historic Preservation Act ("NHPA") through the National Environmental Policy Act
("NEPA") process. However, where there is no federal nexus, the EPA has no jurisdiction to
require ESA or NHPA consultations. Therefore, QEP objects to 40 CFR § 49.104 in the National
FIP where operators would be required to conduct a screening process for ESA and NHPA
review before the operator can begin construction under the proposed FIP on lands with no
federal nexus. EPA is not a surface management agency and furthermore, EPA does not have
jurisdiction on State and private lands to require such consultations where a federal nexus does
not exist.
31
Moreover, QEP is concerned that EPA's requirements for additional analysis under the ESA and
NHPA pursuant to the National FIP will lead to additional lengthy permitting delays. As EPA
states in the proposal preamble, "[a] FIP ... has the advantage of not requiring a source to initiate
advance review and obtain approval of coverage from the Reviewing Authority before beginning
construction ... and it would reduce the resource burden on reviewing authorities associated with
processing the potentially large volume of requests ... ". 80 FR 56568. Through the requirement
to assess threatened and endangered species and historic properties under the FIP, EPA is
compromising the very benefits of a FIP. It is counterproductive to develop a nationwide FIP for
permitting and include site-specific individual determinations for each permitted (or registered)
location. A redundant, secondary layer of approval proposed by EPA will add delay and expense
without improving protection of species and cultural resources.
Federal actions trigger ESA consultation and NHPA review. Compliance with the FIP itself is
not a federal action triggering ESA and NHPA review. Many of the new sources and
modifications undertaken in reliance on this FIP will have already been authorized by another
federal action that complied with ESA and NHPA. Compliance with the FIP, by these new
sources and modifications, is not the federal action. Furthermore, for those few projects in Indian
Country that have not undergone some earlier or concurrent federal authorization process, again,
compliance with the FIP is not the federal action. The NESHAPs and NSPS present an analogous
situation-- sources complying with NESHAPs and NSPS across the country do not trigger ESA
and NHPA review.
Gas Processors Association (GPA) (0040): At the same time, however, GPA respectfully
requests EPA make a number of enhancements to the program to make it more effective.
Specifically, EPA should:
• Clarify when sources can rely on prior National Environmental Policy Act (“NEPA”)
reviews to establish compliance with the Endangered Species Act (“ESA”) and
National Historic Preservation Act (“NHPA”) reviews
Gas Processors Association (GPA) (0040): GPA agrees with EPA that the streamlined processes
included in the proposed FIP will generally allow affected facilities to ensure compliance with
pre-construction permitting requirements with limited additional burdens. As new or modified
sources, each affected facility would already be subject to the substantive NSPS and NESHAP
requirements that EPA is including in the proposed FIP. As a result, the sources would not be
subject to any additional air quality-related requirements beyond those already applicable to new
and modified sources. In fact, as EPA explains, even those six programs are only applicable if a
source falls within each program’s regulatory requirements. See, e.g., 80 FR 56560 (“In cases
where a facility may have VOC emissions above 5 tpy but below 6 tpy, owners or operators
would not be subject to the storage vessel provisions ….”). However, GPA is concerned about
the potential burdens associated with ESA and NHPA compliance provisions and urges EPA to
clarify (and potentially expand) when an affected facility is permitted to rely on a prior NEPA
analysis to fulfill is ESA and NHPA requirements.
In the proposed rule, EPA provides two options for complying with ESA and NHPA
requirements. First, an affected facility can rely on a prior NEPA analysis that incorporated ESA
32
and/or NHPA compliance. 80 FR 56567. Second, as an alternative, an affected facility can
conduct its own screening process for ESA and NHPA compliance and submit documentation to
EPA. Id. However, under this second option, a source cannot commence construction until EPA
has reviewed and approved of the screening process. Id. (“[O]nce an owner/operator completes
the screening procedures, they would submit documentation to the EPA Regional Office and
receive written verification of completion before beginning construction.”). For sources subject
to the screening process under the second option, the screening process itself represents a
substantial and time consuming burden, and the requirement to obtain EPA approval prior to
commencing construction is contrary to the FIP’s focus on providing a streamlined
preconstruction review process and could substantially delay projects. This is particularly
problematic for GPA’s members who often have to respond quickly to changing demands from
producers and can ill afford significant preconstruction delays.
To avoid these concerns, GPA urges EPA to clarify and, if necessary expand, when a facility can
comply with ESA and NHPA requirements by referencing prior NEPA reviews. Specifically,
GPA urges EPA to clarify that the prior NEPA review need not be conducted simultaneously
with the construction or modification of the affected facility. In many cases BIA or BLM may
complete an applicable NEPA review well in advance of the specific construction activity that
may trigger preconstruction review. This is particularly true when an existing facility is modified
in a manner that does not expand the footprint of the existing facility or modify the types of
activities that will take place at the site. In such circumstances, the BIA or BLM may conclude
that the proposed changes to not require further NEPA review. (In contrast, if a proposed change
at an existing facility would expand the facility’s footprint or otherwise include new and unique
activities, a new NEPA review may be required.) GPA urges EPA to clarify that if a site-specific
NEPA review has been conducted in the past and the new construction or modification project
does not trigger additional NEPA review, the operator can continue to rely on the prior NEPA
review for ESA and NHPA compliance, regardless of when that NEPA review occurred. Without
such clarification, operators may be forced to conduct a screening process and delay construction
pending EPA approval in situations where BIA or BLM concluded that additional NEPA review
was not necessary. As long as a prior site-specific NEPA review has occurred, GPA urges EPA
to defer to these land use agencies when they conclude that new construction or modification
projects will not produce new environmental impacts that require additional NEPA review. In
addition, GPA urges EPA to consider whether programmatic EISs can satisfy the relevant ESA
and NHPA requirements. Programmatic EISs can address both ESA and NHPA issues on a
reservation-by-reservation basis in a manner that addresses both the historic resources and
endangered species that may be present in a given area. Allowing individual sources to rely on
the ESA and NHPA analyses in a programmatic EIS can provide further streamlining benefits
that will reduce the costs of implementation while ensuring that environmental goals are met.
Earthjustice et al. (0044): Environmental and Tribal Commenters commend EPA for ensuring
compliance with its ESA and NHPA responsibilities. However, we request that EPA provide a
procedure for reviewing the ESA and NHPA analysis conducted by other agencies to ensure that
it is adequate. EPA must ensure that emissions from a proposed project do not adversely impact
threatened or endangered species or their habitat. [16 U.S.C. § 1536(a)(2).] For example,
emissions of ozone precursors can have significant negative impacts on plant species. As EPA
explains in the preamble to the 2015 Ozone NAAQS, ozone is causally linked to visible foliar
33
injury, decreased photosynthesis, changes in reproduction, decreased growth, decreased
ecosystem productivity, decreased crop yield, and changes in ecosystem composition. [80 FR
65369–410.] EPA also noted that several tribes have indicated that many ozone sensitive species
are culturally significant. [Id. at 65379.] EPA must use its expertise in ozone’s impacts to ensure
that the BLM and BIA provide adequate analysis to ensure that threatened and endangered plants
are not harmed by oil and gas-related air pollution. In particular, EPA can review the accuracy
and adequacy of air quality modeling and other analysis conducted by the surface management
agencies to ensure that it accurately conveys whether and how new and modified sources will
adversely impact air quality in already-polluted regions.
Earthjustice et al. (0044): EPA should also ensure that the NHPA analysis conducted by the
BIA and BLM is sufficient. There are many sensitive cultural sites and areas of special cultural
and spiritual significance to tribes and their members located within Indian Country, and it is
crucial that these areas receive the full protection they deserve under the law. In particular, EPA
should ensure that particulate matter emissions do not cause soot damage to cliff paintings and
other cultural artifacts that can be harmed by soot deposition.14
Western Energy Alliance (0045): The National FIP Must Be Revised to Remove the
Jurisdictional Overreach Regarding the Endangered Species Act and National Historic
Preservation Act - We are concerned that EPA’s requirements for additional analysis under the
Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) in the National
FIP will lead to additional lengthy permitting delays. It is counterproductive to develop a
nationwide FIP for permitting that includes site-specific individual determinations for each
permitted location. Operators must already contemplate impacts to threatened and endangered
species as well as cultural resources in development plans. This added, secondary layer of
approval proposed by EPA will add delay and expense while duplicating existing protections for
species and cultural resources.
As EPA states in the proposal preamble, “[a] FIP…has the advantage of not requiring a source to
initiate advance review and obtain approval of coverage from the Reviewing Authority before
beginning construction…and it would reduce the resource burden on reviewing authorities
associated with processing the potentially large volume of requests…”. [80 FR 56568.] Through
the requirement to assess threatened and endangered species and historic properties under the
FIP, EPA is compromising the very benefits of a FIP.
The Alliance is also concerned with the jurisdictional overreach of EPA regarding requirements
related to threatened and endangered species and historic properties in the proposed regulations.
As recognized in the proposed rule, an operator is required to obtain an Application to Drill
(APD) on federal lands or lands held in trust by the federal government in order to conduct any
oil and natural gas production activities. In order to obtain an APD, the operator must work with
both the Bureau of Indian Affairs (BIA) and Bureau of Land Management (BLM) to conduct the
14 See, e.g., Krista Deal et al., Wildland Fire In Ecosystems: Effects of Fire On Cultural Resources and Archaeology
18 (2012) (describing impacts of particulate deposition on cultural resources) (Appx. at 2244); BLM, Final EIS
West Tavaputs Plateau Natural Gas Full Field Development Plan at 4-239 to 4-244 & App. G at 14–18, 35–40
(2010), www.blm.gov/ut/st/en/fo/price/energy/Oil_Gas/wtp_final_eis.html (Appx. at 1673) (describing impacts of
dust and other pollutants related to oil and gas development on cultural resources, including rock art, in Utah).
34
necessary consultations required under the Endangered Species Act (ESA) and National Historic
Preservation Act (NHPA) through the National Environmental Policy Act (NEPA) process.
However, where there is no federal nexus, the EPA has no jurisdiction to require ESA or NHPA
consultations. Therefore, Western Energy Alliance has concerns with the section in the proposed
rule requiring operators to conduct a screening process for ESA and NHPA review before
beginning construction under the proposed FIP on lands with no federal nexus. EPA is not a
surface management agency and does not have jurisdiction under the ESA and NHPA on state
and private lands.
American Petroleum Institute (API) (0046): While the O&G FIP acknowledges several
practical considerations for permitting oil and natural gas sources, the proposed program falls
short of many of the streamlining permitting objectives mentioned above that are found in
corresponding state programs including:
• The proposed O&G FIP contains a screening step for the Endangered Species Act and
the National Historic Preservation Act that could cause substantial delay in projects
for a review that is unnecessary and not required under the law.
American Petroleum Institute (API) (0046):
Proposed Language
49 CFR §49.104 of the proposed O&G FIP establishes requirements for ensuring compliance
with the federal Endangered Species Act (ESA) and National Historic Preservation Act (NHPA).
Issue
The proposed rule would require affected sources to satisfy one of two alternative provisions
addressing the Endangered Species Act (ESA) and the National Historic Preservation Act
(NHPA). If the proposed source or modification already had undergone review under these laws
(e.g., in connection with approvals issued by the Bureau of Land Management), then
documentation of that prior review must be submitted to EPA and the relevant Tribe as a
condition of using the FIP. The source also must show it is in compliance with any relevant
requirements flowing from that prior review. [Proposed § 49.104(a)(1).]
If the proposed source or modification has not undergone prior ESA or NHPA review, then the
source must conduct ESA and NHPA screening using a specified procedure, the screening must
be submitted to EPA and the relevant Tribe, and the source must obtain written confirmation
from EPA that it has satisfied the screening requirements before the FIP may be used. [Proposed
§ 49.104(a)(2).]
In the preamble to the proposed rule, EPA provides the following rationale for these
requirements: “Although the individual coverage of each source that would operate under the
FIP would not constitute a separate triggering action for ESA or NHPA purposes, we believe that
the proposed FIP’s procedures relating to listed threatened or endangered species and historic
properties provide an appropriate site specific means of addressing issues regarding potential
impacts on those resources in connection with sources that could be covered under the FIP.” [80
FR 56566.]
35
Imposition of these ESA and NHPA requirements as conditions of using the FIP is unlawful and
unreasonable. It is unlawful because the ESA and NHPA are triggered only when a federal action
is taken. As EPA acknowledges in the preamble, the use of the FIP by an affected source does
not require any federal action. Therefore, there is no need or justification for imposing ESA or
NHPA requirements when an affected source avails itself of the FIP.
These requirements are unreasonable because they stand to frustrate the entire purpose of the
FIP. EPA stresses in the preamble that the purpose of the FIP is to provide a “streamlined”
approach to permitting minor O&G sources on Indian lands, which would be accomplished in
part by imposing “unambiguous” requirements on affected sources. [Id. at 56557.] EPA further
explains that the FIP is intended to “reduce burden for sources and the Reviewing Authority and
prevent delays in new construction due to the minor NSR permitting obligation.” [Id.]
None of these goals would be realized if the proposed ESA and NHPA requirements are
finalized. The FIP would not be a “streamlined” permitting alternative when ESA and NHPA
review had not previously been conducted because the FIP could not be used until screening was
completed, the screening was submitted to EPA, and EPA reviewed and approved in writing the
results of the screening. In the best of situations, this process will impose significant delay on the
use of the FIP. While that is bad enough, this process is ripe for abuse because it invites third
parties to use the process as a mechanism for opposing O&G projects. In the face of objections,
EPA will have no choice but to stop the process for the time needed to assess and respond to the
comments. Even meritless objections will slow permitting to a crawl.
Moreover, under these procedures, the FIP would certainly not impose “unambiguous”
requirements. Case-specific ESA and NHPA review is the antithesis of an unambiguous process.
Also, these procedures certainly would not “reduce the burden” of permitting for affected
sources and EPA. Injecting ESA and NHPA review into the FIP process has the opposite effect
of substantially increasing permitting burdens and disadvantage development in Indian Country.
In short, the proposed approach to implementing the ESA and NHPA would unreasonably
interfere with all of the purposes EPA describes as the basis for this rule.
Notably, the approach taken here is unique to the proposed FIP as compared to any other directly
applicable substantive CAA rule. For example, EPA recently proposed changes to NSPS Subpart
OOOO, which also applies to affected sources that would be covered by the FIP (indeed, NSPS
OOOO is incorporated by reference into the FIP). There is no mention whatsoever of ESA or
NHPA in the NSPS OOOOa proposal. Yet, like the FIP, NSPS OOOO (and the proposed NSPS
OOOOa) effectively authorizes the construction of new sources and modification of existing
sources. And, like the FIP, NSPS OOOO applies directly to affected sources without any need or
requirement for case-specific authorization or decision-making. The difference in approach
between the proposed FIP and other directly applicable CAA substantive rules is unexplained
and unexplainable. Therefore, there is no justification for imposing ESA and NHPA
requirements under the FIP.
Recommendation
API proposes that EPA remove section §49.104 from the proposed FIP, as the FIP does not
trigger ESA or NHPA review.
36
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #10: Two commenters (0038, 0045) expressed concern about the EPA’s authority to
impose requirements relating to threatened or endangered species and historic properties in the
proposed national FIP. These commenters stated that where there is no federal nexus, the EPA
has no jurisdiction to require Endangered Species Act (ESA) or National Historic Preservation
Act (NHPA) consultations. These commenters also noted that the EPA is not a surface land
management agency and does not have jurisdiction on state and private lands to require such
consultations where a federal nexus does not exist. Another commenter claimed that imposition
of these ESA and NHPA requirements as conditions of using the FIP is unlawful and
unreasonable. The commenter stated that it is unlawful because the ESA and NHPA are triggered
only when a federal action is taken, and that as the EPA acknowledges in the preamble, the use
of the FIP by an affected source does not require any federal action. Therefore, the commenter
believes that there is no need or justification for imposing ESA or NHPA requirements when an
affected source avails itself of the FIP.
Response #10: We disagree with the commenters’ statement that the EPA lacks authority to
require assessments of potential impacts on these resources as sources are covered under the FIP.
Consistent with the EPA’s authority under the CAA, the EPA has built the screening procedures
into the FIP as an adequate and appropriate means of addressing potential impacts on these
resources. Given the intended scope of the FIP, it would be very difficult, if not impossible, for
the EPA to evaluate such potential impacts in all areas where the FIP might apply. As a result,
the EPA has concluded that the only way to address potential impacts on these resources in
conjunction with the FIP, which is intended to provide a streamlined mechanism for complying
with the Federal Indian Country Minor NSR rule, is to require the owners/operators to do it.
Although the EPA is not a land management agency, the EPA is the federal agency promulgating
the FIP, which will cover sources irrespective of whether they locate on federal or non-federal
land. The EPA understands that completing the screening procedures will impose some burden
on covered sources. However, the EPA has attempted to streamline these procedures to the
extent practicable while ensuring appropriate consideration of the resources. We have not made
any changes to the ESA/NHPA procedures as a result of these comments.
Comment #11: Four commenters (0038, 0040, 0045, 0046) expressed concern that the FIP’s
requirements for additional analysis addressing listed species and historic properties where a
prior assessment by another federal agency has not been completed will lead to lengthy
permitting delays. One commenter stated that the added secondary layer of listed species and
historic property approval proposed by the EPA will add delay and expense, while duplicating
existing protections for species and cultural resources. One commenter stated that the inclusion
of site-specific reviews for listed species and historic properties contradicts the EPA’s statement
in the preamble that the purpose of the FIP is to provide a “streamlined” approach to permitting
minor oil and natural gas sources on Indian lands, which would be accomplished in part by
imposing “unambiguous” requirements on affected sources. The commenter asserted that case-
specific listed species and historic property review is the antithesis of an unambiguous process.
37
Response #11: The EPA has promulgated the FIP to streamline the NSR permitting process to
allow sources to avoid potential delays associated with individual source permitting. In
connection with issuance of the FIP – which provides the relevant CAA authorization for sources
to construct – the EPA has also added the threatened and endangered species and historic
property screening procedures as an appropriate means of addressing potential impacts on these
resources as sources are covered under the FIP. As indicated below, the EPA does not view
coverage of individual sources under the FIP as separate ESA or NHPA triggering events.
However, given the intended scope of the FIP, it would be very difficult, if not impossible, for
the EPA to evaluate the potential impacts on the relevant resources in all areas where the FIP
might apply. As a result, the EPA has concluded that the only way to address these impacts in
conjunction with issuing this FIP, which is intended to provide a streamlined mechanism for
complying with the Federal Indian Country Minor NSR rule, is to require the owners/operators
to do it.. The EPA has, however, provided significant streamlining opportunities in this process
by providing an avenue for covered sources to rely on prior listed species/historic property
assessments done in connection with other federal agency permits or authorizations, and the EPA
anticipates that many of the covered sources will have undergone such prior assessments and,
thus, will require no further analysis. If analysis is required in those few cases where no prior
assessment is available, the EPA has provided straightforward procedures for sources to
complete their own assessments.15 No changes were made as a result of this comment.
Comment #12: Two commenters (0038, 0040) stated that, while federal actions trigger ESA
consultation and NHPA review, compliance with the FIP itself is not a federal action triggering
ESA and NHPA review. One of these commenters noted that the EPA acknowledged in the
preamble that the use of the FIP by an affected source does not require any federal action. The
other commenter stated that many of the new sources and modifications undertaken in reliance
on this FIP will have already been authorized by another federal action that complies with ESA
and NHPA, and that compliance with the FIP by these new sources and modifications is not the
federal action. The commenter added that for projects that have not undergone some earlier or
concurrent federal authorization process, compliance with the FIP is not the federal action. The
commenter further indicated that NESHAPs and NSPS present an analogous situation – sources
complying with NESHAPs and NSPS across the country do not trigger ESA and NHPA reviews.
Another commenter (0046) noted that the approach the EPA is taking with the FIP is unique as
compared to any other directly applicable substantive CAA rule. For example, the EPA recently
proposed changes to 40 CFR part 60, subpart OOOO, which also applies to affected sources that
would be covered by the FIP (40 CFR part 60, subpart OOOO, is included in the proposed FIP).
The commenter noted that there is no mention of ESA or NHPA in the 40 CFR part 60, subpart
OOOOa, proposal. In the commenter’s view, like the FIP, 40 CFR part 60, subpart OOOO (and
the proposed 40 CFR part 60, subpart OOOOa), effectively authorize the construction of new
sources and modification of existing sources. And, like the FIP, 40 CFR part 60, subpart OOOO
applies directly to affected sources without any need or requirement for case-specific
authorization or decision-making. The commenter asserts that the difference in approach
between the proposed FIP and other directly applicable CAA substantive rules is unexplained
and unexplainable and that there is no justification for imposing ESA and NHPA requirements
under the FIP.
15 To find these procedures, go to: https://www.epa.gov/tribal-air/tribal-minor-new-source-review/.
38
Response #12: The EPA agrees that each separate coverage under the FIP does not constitute an
action that triggers ESA/NHPA. However, the EPA disagrees that the listed species and historic
property screening procedures included in the FIP impose ESA or NHPA compliance
requirements on covered sources. These screening procedures are intended to be an appropriate
means of addressing potential impacts on the relevant resources in connection with the EPA’s
issuance of the FIP, which provides CAA authorization for sources to construct in lieu of
individual or other permitting under the Federal Indian Country Minor NSR rule.
The screening procedures are requirements of the FIP – not of the ESA or NHPA – and are
consistent with the EPA’s authority under the CAA. These requirements are appropriate for the
FIP, which, as noted above, provides CAA authorization for sources to construct without the
need for separate NSR permitting. By contrast, NSPSs and NESHAPs impose emission reduction
requirements on sources, but are not separate authorizations for construction. We have not made
any changes as a result of these comments.
Comment #13: One commenter (0040) expressed concern about the potential burdens associated
with the listed species and historic property compliance provisions and urged the EPA to clarify
when an affected facility is permitted to rely on a prior National Environmental Policy Act
(NEPA) analysis to fulfill these requirements. This commenter asked the EPA to clarify that the
prior NEPA review need not be conducted simultaneously with the construction or modification
of the affected facility, referring to cases where the Bureau of Indian Affairs (BIA) or Bureau of
Land Management (BLM) may have completed an applicable NEPA review well in advance of
the specific construction activity. This commenter also requested that the EPA consider whether
programmatic environmental impact statements (EISs) can satisfy the relevant requirements,
noting that programmatic EISs can address both ESA and NHPA issues on a reservation-by-
reservation basis in a manner that addresses both the historic resources and endangered species
that may be present in a given area. This commenter stated that allowing individual sources to
rely on prior ESA and NHPA analyses in a programmatic EIS can provide further streamlining
benefits that will reduce the costs of implementation, while ensuring that environmental goals are
met.
Response #13: The EPA has added regulatory text to the final rule to clarify the documentation
that needs to be submitted with the Part 1 Registration Form, what the documentation must
show, and the process by which it must be submitted. The documentation must demonstrate that,
for the project site operating under the FIP, another Federal agency (e.g., BLM or BIA) had met
its applicable statutory obligations under the ESA and NHPA in connection with its involvement
with the project. An example of acceptable documentation would be a letter from the FWS (for
ESA) or a historic preservation office (for NHPA) stating that the project has been reviewed, and
the relevant statutes have been satisfied by the agency conducting the review, that any impacts of
the project have been assessed, and any appropriate mitigation included. Such letters may, for
instance, include a concurrence from FWS that a project will have no likely adverse effects on
listed species or critical habitat.
Comment #14: One commenter (0044) requested that the EPA provide a procedure for reviewing
the ESA and NHPA analyses conducted by other agencies (e.g., BIA and BLM) to ensure that it
39
is adequate and sufficient. The commenter stated that the EPA must ensure that emissions from a
proposed project do not adversely impact threatened or endangered species or their habitat. The
commenter added that the many sensitive cultural sites and areas of special cultural and spiritual
significance to tribes and their members must receive the full protection they deserve under the
law.
Response #14: The EPA appreciates the commenter’s concern that listed species and historic
properties, including properties of specific interest to Indian tribes, receive appropriate
consideration and protection. The EPA believes as a general matter that the agencies with
relevant resource expertise16 (e.g., the U.S. Fish and Wildlife Service and Tribal and State
Historic Preservation Officers) are best qualified to ensure that the considerations the commenter
is raising related to threatened and endangered species and cultural resources are addressed. The
EPA has thus included appropriate screening procedures in the FIP to ensure that a complete
assessment of covered projects occurs, either as part of a separate federal agency’s prior
compliance with the ESA and NHPA in connection with a source, or during a source’s screening
review under the FIP if no such prior assessment is available. In either scenario, the expert
resource agencies will be appropriately involved in the consideration of any impacts on the
resources and in the development of any relevant mitigation measures. The EPA will then ensure
that sources have successfully completed the assessment process, that the documentation is
available, and that the sources are in compliance with the FIP’s requirements, including
requirements with adequate measures to address air quality issues.
By way of example, the EPA envisions the process could work as follows: an oil and natural gas
owner/operator submits a request to drill to BLM or BIA; BLM/BIA initiate a comprehensive
review of the project’s potential impacts on the protected resources and engage in any required
consultations with the expert resource agencies prior to approving new oil and natural gas
activity; these consultations and assessments address direct and indirect effects of the action on
the protected resources; the process concludes with relevant concurrences or other final decisions
regarding the project’s impacts and identification of any mitigation measures; and the source
submits required information to the EPA under the FIP to demonstrate compliance with the ESA
and NHPA as part of the prior review. The EPA notes that this process may occur as part of a
review by the other federal agency under NEPA, in which case the EPA may be involved as one
of the reviewing agencies of the NEPA assessment. In light of the degree of involvement of the
land management federal agencies in project oversight and the expertise of the resource agencies,
the EPA anticipates that this process will result in appropriate consideration of any impacts on
the protected resources and that additional involvement by the EPA in that review would not
provide meaningful additional input. The EPA has revised the regulatory text to specify what
documentation relating to another Federal agency’s compliance with ESA and NHPA is
acceptable to demonstrate that these requirements are met.
3.0 Comments on the Rationale for the Proposed FIP
16 These experts possess the knowledge – and, under their statutes and regulations, the authority and responsibility –
necessary to assess impacts on protected resources and to judge the adequacy of any mitigation measures needed to
protect those resources.
40
Marrs (0027): Targeting new true minor sources of harm to citizens through the natural gas and
oil industries would better protect American Indians living in Indian Country through a broader
protection plan from the EPA, building off of pre-existing tribal laws regarding regulation where
they exist.
Marrs (0027): A “true minor source” under the Federal Indian Country Minor NSR rule is a
source that emits, or has the potential to emit, regulated NSR pollutants in amounts less than a
major source threshold under the PSD Program of 40 CFR 52.21, or the Federal Major NSR
Program for Nonattainment Areas in Indian Country at 40 CFR 49.166- 49.173, but equal to or
greater than the minor NSR thresholds in 40 CFR 49.153. Essentially, any minor source is an
emissions production source that emits under 100ppm, thus not qualifying as a major emissions
source.
Under the new rule, a FIP would cover the oversight of minor source emitters in Indian country,
rather than the tribal government issuing Tribal Implementation Plan (TIP) to regulate minor
source emissions. The FIP coming from the EPA would seek to streamline the process and
provide additional protections under federal statutes and regulations in order to benefit the health
and safety of a tribe from air pollution. However, the rule does leave open the opportunity for
permits that are issued by the tribe that would cover specific sites and minor sources, or existing
TIPs could be approved by the EPA if they have not been already.
Under most circumstances, the Federal Indian Country Minor NSR rule would specify the
process and requirements for using general permits to authorize the construction of new emission
sources or modifications of true minor sources. The EPA issues general permits to streamline the
approval of minor source emissions rather than site-specific permits for each emission source. A
permit by rule, however, is a standard set of requirements that would also, like a general rule,
allow for minor sources to be under the same category, given that they do not overstep emission
standards, when they are similar in nature.
The authority the EPA has in both altering the tribal regulations, as well as the regulation of the
oil and natural case industry itself in this scenario, stems from discretionary authority under
sections 301(a) and 301(d)(4) of the Clean Air Act (CAA) and 40 CFR 49.11(a)—which gives
the authority to create a FIP to fix a regulatory gap under the CAA regarding oil and natural gas
production in Indian country.17
Marrs (0027): Implementation aside, as well as the issue of reorganizing regulation under an
FIP, the goal of the EPA in the creation of this rule should be fairly obvious. According to the
WHO ambient outdoor air pollution in both cities and rural areas was estimated to cause 3.7
million premature deaths worldwide in 2012, due to numerous environmental risks such as
particulate matter (PM), ozone (O3), nitrogen oxide (NO2), and sulfur dioxide (SO2) leading to
various respiratory and circulatory diseases. In reduced quantities, as the EPA proposals seek to
furnish by creating an FIP to reduce minor source emissions of these categories, the WHO
17 Many tribes do not have existing Tribal Implementation Plans, thus leaving a “no-man’s land” of regulatory
authority.
41
estimates that these risks to those in these areas would be significantly diminished.18 Mirroring
low-income areas in other parts of the world, the history of American Indian hardship as a result
of broken treaties and forced relocation to reservations predominately in the American West has
created health issues stemming from poverty. Similarly, this has also created a high risk for air
pollution problems and the health risks associated with it among populations in Indian country,
namely from the rich natural resources that lie under reservation and other tribal lands.19, 20
The Tribal Energy and Environmental Information Clearinghouse highlights some of the issues
associated with air pollution from oil and natural gas industries looking to tap into previously
underutilized resources on tribal lands, with tribes seeking to capitalize on potential economic
gains. Tribal sources further note that “emissions generated during the drilling/development
phase include vehicle emissions; diesel emissions from large construction equipment and
generators, storage/dispensing of fuels, and, if installed at this stage, flare stacks; small amounts
of carbon monoxide, nitrogen oxides, and particulates from blasting activities; and dust from
many sources, such as disturbing and moving soils (clearing, grading, excavating, trenching,
backfilling, dumping, and truck and equipment traffic), mixing concrete, and drilling. During
windless conditions (especially in areas of thermal inversion), project-related odors may be
detectable at more than a mile from the source. Excess increases in dust could decrease forage
palatability for wildlife and livestock and increase the potential for dust pneumonia.”21 Many of
these health hazards specifically fall under the category of emissions from a minor source
according to the EPA, which would be regulated under the application of this rule to new true
minor sources.
Another major issue facing these tribal communities is the lack of infrastructure and staff to
successfully implement plans that control air pollution sources that interfere with tribal lands.
There is a desire to harness economic opportunities when they present themselves in the form of
natural resource wealth, however, a lack of expertise in the environmental impact of plans, the
fact that not all tribes have proper implementation plans, the existing political/scientific
infrastructure to properly regulate emission sources, the use of land-based economies.22
Here, the EPA seeks to create an FIP to attempt to remedy this situation, covering the gaps left
open by the lack of a TIP, which many tribes have not created. The EPA’s plan would likely
streamline the process for creating protections for tribes, which in effect would give the tribes
more assured federal protection for these highlighted issues, much of which are covered by the
EPA’s proposed rule itself. While economic self-determination would largely be shifted to the
control of the EPA except in areas where tribes have existing TIPs or exclusive dominion over
18 World Health Organization, Ambient (outdoor) Air Quality and Health, (March 2014). Available at
http://www.who.int/mediacentre/factsheets/fs313/en/. 19 $168 Million Settlement between Navajo Coal Plant and EPA, Indian Country Today Media Network, (June 25,
2015). 20 The settlement was against the Four Corners Power Plant, a high-pollution power plant on Navajo land resulting
in respiratory illness and disease to a large number of tribe members, largely stemming from unregulated upgrades
that were implemented by the plant. 21 Oil and Gas Drilling/Development Impacts, Tribal Energy and Environmental Clearinghouse, Available at
http://teeic.indianaffairs.gov/er/oilgas/impact/drilldev/. 22 Lauren Wenzel, Environmental Risk in Indian Country, U.S. EPA National Network for Environmental
Management Studies, 21, 22 (2004). Available at http://nepis.epa.gov/Adobe/PDF/400007NV.PDF.
42
environmental affairs, it could be argued that the health benefits to tribal members outweigh the
natural resource exploits.
QEP Resources, Inc. (0038): QEP also supports EPA's strategy to align the FIP with existing
federal standards. As stated in the proposal, there is value in relying on regulations that have
been vetted through the public comment process and that operators have already committed to
complying with. [See 80 FR 56569.]
Gas Processors Association (GPA) (0040): GPA strongly supports EPA’s proposal to develop a
streamlined preconstruction review process for sources in the oil and natural gas sector. A
streamlined permitting process, such as the proposed federal implementation plan (“FIP”), offers
a number of important benefits that will allow cost effective and efficient development of oil and
natural gas resources in Indian Country while at the same time ensuring continued environmental
protection in accordance with EPA’s obligations under the national ambient air quality standards
(“NAAQS”) program and industry’s commitment to be environmental stewards when engaged in
industrial activities. Because sources within the oil and natural gas production and processing
sectors share many design attributes, site-specific permitting is not necessary in many cases. A
streamlined preconstruction review process that incorporates uniform requirements across the
entire sector is in the best interests of federal permit writers and of the regulated community.
Earthjustice et al. (0044): The Proposed FIP would allow minor oil and gas sources to forego
preconstruction review and permitting and instead simply certify that they will comply with six
air quality regulations (“six regulations”) that already apply within Indian Country: (1) current
and future NSPS for new and modified sources in the oil and natural gas sector, 40 CFR Part 60,
Subpart OOOO and OOOOa (proposed); (2) NSPS for fuel storage tanks, 40 CFR Part 60
Subpart Kb’ (3) NSPS for compression ignition internal combustion engines, 40 CFR Part 60,
Subpart IIII; (4) NSPS for spark ignition internal combustion engines, 40 CFR Part 60, Subpart
JJJJ; (5) national emission standards for hazardous air pollutants (“NESHAPs”) for oil and
natural gas production facilities, 40 CFR Part 63, Subpart HH; and (6) NESHAPs for process
heaters, 40 CFR Part 63, Subpart DDDDD. [80 FR 56558.] However, EPA has provided no
assurance that these six regulations will adequately address the air quality problems in Indian
Country and ensure compliance with all applicable standards including the National Ambient Air
Quality Standards (“NAAQS”), Prevention of Significant Deterioration (“PSD”) Program, and
the Visibility Protection program. [See 42 U.S.C. §§ 7602(y), 7470–71, 7473, 7491.]
Earthjustice et al. (0044): As EPA explained in the tribal NSR rule, preconstruction permitting
procedures are designed to “demonstrate that [sources] will be operating in a manner that is
protective of air resources and the NAAQS” and that “any economic growth occurring in Indian
Country will be in harmony with the preservation of Clean Air Act resources.”23 Permit
applications inform the regulatory authority about the amount of emissions anticipated from a
new or modified source. [76 FR 38759.] Each permit is subject to two types of technical review:
(1) control technology review; and (2) review of the probable impact on air quality of the
proposed new source. [Id. at 38760–61.]
23 76 FR 38753; see also id. at 38760 (stating that the minor source permitting program is “primarily designed to
assure that the NAAQS are achieved and to prohibit any minor source from emitting any air pollutant in amounts
that would contribute to nonattainment or interfere with maintenance of the NAAQS”).
43
The control technology review includes consideration of “local air quality needs, typical control
technology used by similar sources in surrounding areas, anticipated economic growth in the area
and cost-effective control alternatives.” [Id. at 38760.] This case-by-case analysis “provides the
reviewing authority with the flexibility to create requirements that protect public health and the
environment, but also takes into consideration the needs of the area in question based on its
current air quality situation, the potential air quality impacts from the growth associated with the
source and the technological and economic feasibility of the control technology as well as the
control technologies in use in the surrounding states.” [Id. at 38761.] The permitting authority
also considers the impact of the source on air quality. If there is any concern that a minor source
could “cause or contribute to a NAAQS or PSD increment violation,” the permitting authority
may require dispersion modeling. [Id.]
Although EPA offers the Proposed FIP as a substitute for this permitting process, EPA did not
conduct any control technology review, air quality impacts analysis, or dispersion modeling for
the Proposed FIP. In the ANPR, EPA seemed to acknowledge that such analysis was necessary.
EPA stated that if it adopted a uniform set of control technology requirements, it would
undertake a “control technology review” similar to that provided in the Indian minor source rule.
[79 FR 32519.] As part of that review, EPA indicated that it would consider a list of potential
control technology options such as requirements currently applicable or under consideration by
federal, state, and local agencies and recommendations in the CTGs. [Id.] EPA also planned to
weigh the energy, environmental, and economic impacts of those controls. [Id.] However, EPA
conducted no such analysis for the Proposed FIP. An analysis of existing state regulations, such
as those adopted in Colorado, and recommendations in the CTGs would have revealed that
controls for existing sources are available at reasonable costs and being implemented. [See infra
p. 19.]
Earthjustice et al. (0044): Many areas of Indian Country are already exceeding federal public
health standards. EPA provided a table in the ANPR which shows that, among counties where
Indian Country exists, six are designated as nonattainment for the 1997 annual PM2.5 NAAQS,
seventeen are designated as nonattainment for the 2006 24-hour PM2.5 NAAQS, fifteen are
designated as nonattainment for the 1987 PM10 NAAQS, and twenty-one are designated as
nonattainment for the 2008 8-hour ozone NAAQS. [79 FR 32510–11.] The same data table also
shows that eighteen counties where Indian Country exist are exceeding the 2008 8-hour ozone
NAAQS based on 2010-12 design values. [Id. at 32511.] And, according to EPA’s website, fifty-
three tribes have jurisdiction over parts of Indian Country that are designated nonattainment with
the 2008 8-hour ozone standard.24
Current ozone nonattainment designations under the old 75 parts per billion (“ppb”) standard are
not the best indicator for whether ozone levels pose a danger to public health. After several years
of delay, EPA recently strengthened the 8-hour ozone NAAQS to 70 ppb.25 However, under the
American Thoracic Society (“ATS”) guidelines and EPA’s own Clean Air Scientific Advisory
24 EPA, Tribal Final Designations, http://www3.epa.gov/ozonedesignations/2008standards/final/tribalf.htm. 25 See EPA, National Ambient Air Quality Standards for Ozone, 80 FR 65292, 65292 (Oct. 26, 2015) (2015 Ozone
NAAQS).
44
Committee’s (“CASAC”) advice, sensitive populations experience adverse health impacts when
exposed to ozone concentrations down to 60 ppb.26, 27
As shown in Table 1, many counties that include Indian Country have both significant oil and
gas production (>10,000 barrels oil and/or >1,000,000 thousand cubic feet (mcf) gas per year)
and 2012-14 design values which either exceed the 2015 ozone NAAQS or are at levels that pose
a threat public health and the environment. Three counties have 2012-14 design values that
exceed the NAAQS, seven counties have 2012-14 design values above 60 ppb, and two counties
have 2012-14 design values above 50 ppb.28
TABLE 1
State County 2014 DV
(ppm)
Reservations, Rancherias (CA), and/or
Pueblos (NM) Located in County
CA Tehama 0.075 Paskenta Band of Nomlaki
CO La Plata 0.068 Southern Ute; Ute Mountain Ute
26 See Comments of Am. Lung Ass’n et al. on EPA’s Proposed Revisions to the National Ambient Air Quality
Standards for Ozone at 46 (Mar. 17, 2015) (Docket No. EPA-HQ-OAR-2008-0699) (Ozone NAAQS Revisions
Comments) (Appx. at 55). 27 CASAC found that there were “adverse effects, including clinically significant lung function decrements and
airway inflammation, after exposures to 60 ppb ozone in healthy adults with moderate exertion.” Ozone NAAQS
Revisions Comments at 54 (citing Letter from CASAC Chair Dr. H. Christopher Frey to U.S. EPA Administrator
Gina McCarthy re: Second Draft Policy Assessment for the Review of the Ozone National Ambient Air Quality
Standards (EPA-CASAC-14-004) at 7 (June 26, 2014)). CASAC further advised EPA “there is a scientific basis to
anticipate that adverse effects for [sensitive] subgroups [such as children with asthma] are likely to be more
significant at 60 ppb than for healthy adults.” Id. Thus, EPA’s Children’s Health Protection Advisory Committee
(“CHPAC”) concluded that a 60 ppb standard was requisite to protect children’s health and advised EPA to adopt a
60 ppb ozone NAAQS in order to adequately protect children’s health with a sufficient margin of safety. Id. at 55–
56 (citing Letter from CHPAC Chair Dr. Sheela Sathyanarayana to CASAC Chair Dr. Christopher Frey (May 19,
2014)). And the ATS has long supported a 60 ppb ozone NAAQS because of the strong scientific evidence showing
relationships between ozone exposure down to the 60 ppb level and adverse health effects like hospital admissions
for asthma, chronic obstructive pulmonary disorder in children and adults, lung function deficits in healthy adults,
and increased mortality for the elderly and patients with chronic diseases. Id. at 56–57 (citing M.B. Rice, T.L.
Guidotti, & K.R. Cromar on behalf of the ATS Environmental Health Policy Committee, Scientific Evidence
Supports Stronger Limits on Ozone, AM. J. CRITICAL CARE MED. (2014)). 28 Sources for Table 1: EPA, 2014 Design Value Reports: Ozone (July 20, 2015),
http://www3.epa.gov/airtrends/pdfs/Ozone_DesignValues_20122014_FINAL_08_03_15.xlsx (county level data is
available at tab four of the spreadsheet); Bureau of Indian Affairs, Indian Reservations in the Continental United
States, www.nps.gov/nagpra/DOCUMENTS/RESERV.PDF; Cal. Div. of Oil, Gas, and Geothermal Res. (DOGGR),
Online Production and Injection Query for the State of California, http://opi.consrv.ca.gov/opi/opi.dll (search by
“County” and “Get Sums” for county level data); DOGGR, Well Finder,
http://maps.conservation.ca.gov/doggr/#close (search by “PLSS” and “all wells” for Rancheria level data); Colo. Oil
and Gas Conservation Comm’n, COGIS – Production Data Inquiry,
https://cogcc.state.co.us/cogis/ProductionSearch.asp (search by “County”); N.M. Oil Conservation Div., County
Production and Injection Summary by Month,
wwwapps.emnrd.state.nm.us/ocd/ocdpermitting//Reporting/Production/CountyProductionInjectionSummaryReport.
aspx; N.D. OIL AND GAS DIV., OIL IN NORTH DAKOTA: 2014 at 1404 (2015),
www.dmr.nd.gov/oilgas/stats/AnnualProduction/2014AnnualProductionReport.pdf; Utah Div. of Oil, Gas &
Mining, Utah Oil Production by County, http://oilgas.ogm.utah.gov/Statistics/PROD_Oil_county.cfm; Wyo. Oil and
Gas Conservation Comm’n, Download Production by County and Year,
http://wogcc.state.wy.us/productioncountyyear.cfm (search by “county” and “year”).
45
CO Montezuma 0.067 Southern Ute; Ute Mountain Ute
NM Sandoval 0.063 Jicarilla Apache; Cochiti Pueblo; Jemez
Pueblo; Laguna Pueblo; San Felipe Pueblo;
Sandia Pueblo; Santa Ana Pueblo; Kewa
(f/k/a Santo Domingo) Pueblo; Zia Pueblo
NM San Juan 0.068 Navajo; Ute Mountain Ute
ND Dunn 0.057 Fort Berthold Reservation (Mandan,
Hidatsa, Arikara)
ND McKenzie 0.057 Fort Berthold Reservation (Mandan,
Hidatsa, Arikara)
UT Carbon 0.068 Uintah & Ouray Reservation (Ute)
UT Duchesne 0.077 Uintah & Ouray Reservation (Ute)
UT San Juan 0.067 Navajo; Ute Mountain Ute (White Mesa)
UT Uintah 0.076 Uintah & Ouray Reservation (Ute)
WY Fremont 0.064 Wind River Reservation (E. Shoshone & N.
Arapaho)
Counties for which EPA has published 2012-14 8-hour ozone Design Values which include
Indian Country and which produced more than 10,000 barrels oil and/or 1,000,000 McF gas
in most recent year for which data is available from relevant state agency. California
Rancherias and reservations are included only if DOGGR data reveals existing wells located
on tribal lands. See supra and infra nn. 9–10.29
The Coalition ANPR Comments provided extensive detail about the ozone pollution problems in
the Uinta and San Juan Basins, which have substantial oil and gas development within portions
of Indian Country. [See Coalition ANPR Comments at 4-12.] Oil and gas development in the
Uinta Basin also contributes to visibility issues in Dinosaur National Monument. [See infra pp.
13–14.] In the ANPR, EPA cited a Western Regional Air Partnership study that concluded that
oil and gas sources account for the majority of ozone precursor emissions in the Uinta Basin and
Northern San Juan Basins.30 A recent study in the Uinta Basin concluded that oil and gas sources
contribute 98 to 99% of emissions of volatile organic compounds (“VOCs”), an ozone precursor.
[See Coalition ANPR Comments at 7.] Up to 90% of the development in the Uinta Basin is
29 Because EPA publishes design values and generally designates attainment at the county level, counties, rather
than reservations, are the geographic units used in Table 1. See, e.g., Treasure State Res. Indus. Ass’n v. EPA, No.
13-1263, slip op. at 14 (D.C. Cir. Nov. 3, 2015). Several counties in Oklahoma may also belong on Table 1.
Canadian, Caddo, Cleveland, Comanche, Creek, Dewey, Kay, McClain, Oklahoma, and Tulsa Counties all include
Tribal Jurisdictional Areas, have 2012-14 design values above 70 ppb, and had 2012 annual production of either
>10,000 barrels of oil or >1,000,000 mcf of gas. Okla. Corp. Comm’n, Monthly Oil and Gas Production by County
(year to date) (2012), http://www.occeweb.com/og/ogmonthytd.pdf. However, following the court’s decision in
Oklahoma Department of Environmental Quality v. EPA, it is unclear whether Oklahoma Tribal Jurisdictional Areas
qualify as “Indian country.” 740 F.3d 185, 189 (D.C. Cir. 2014) (“ODEQ”), In the final rule, EPA should clarify
whether its revised definition of Indian Country includes Tribal Jurisdictional Areas in Oklahoma, as well as other
areas with jurisdictional issues, such as allotted lands on the eastern edge of the Navajo Reservation. Environmental
and Tribal commenters encourage EPA to interpret its definition so as to maximize tribal sovereignty and clarify that
the final rule covers allotted lands. 30 79 FR 32508 (citing A. Bar-Ilan et al., A Comprehensive Emissions Inventory of Upstream Oil and Gas Activities
in the Rocky Mountain States (2013)).
46
occurring within Indian Country. [Id. at 8.] Since 2009, the Uinta Basin has experienced
wintertime ozone pollution levels that exceed those in some of the most polluted cities in the
U.S. [See id. at 5–6.]
Additional data released since the Coalition submitted its comments on the ANPR demonstrates
that the Uinta Basin continues to suffer from severe ozone pollution. According to the 2013-14
wintertime ozone season report, the nineteen monitors in the basin collectively measured eight-
eight exceedances of the 2008 ozone standard, and ten of the monitors had overall daily
maximum values above 70 ppb.31 The highest 8-hour average ozone concentration of the season
was 104 ppb. [Id. at 2-7.]
There are similar alarming trends in the San Juan Basin. Much of the San Juan Basin is located
within Indian Country, including portions of the Navajo, Southern Ute, Ute Mountain Ute, and
Jicarilla Apache Reservations. The estimated 22,000 natural gas wells in the Basin are a source
of concern for tribal members, including Diné CARE members, who are already impacted by air
pollution from several coal-fired power plants located in the Basin.32 However, not all of the San
Juan Basin is Indian Country. Nevertheless, as noted above, several thousands of these wells are
located on the Navajo Nation, Southern Ute, and Jicarilla Apache Reservations. [See supra p. 5.]
The Four Corners region has been referred to as a “national sacrifice area” due to the
concentration of energy development and related pollution there, creating significant
environmental justice concerns for the area’s tribal and rural communities.33
Air quality in the San Juan Basin is already poor, partially as a result of the high concentration of
oil, gas, and coalbed methane development in the region. [See Coalition ANPR Comments at
11–12.] According to a June 2014 Southern Ute report, all eight ozone monitors on and near the
tribe’s reservation registered ozone levels exceeding 65 ppb in 2013.34 Data from EPA’s
published 2012-14 design values similarly show that all ozone monitors in the region for which
2012-14 design values are available exceed 65 ppb.35
Although there is much evidence that oil and gas development in Indian Country is causing
likely public health problems, without adequate monitoring, EPA cannot ensure that it is
protecting public health from the emissions associated with oil and gas development. As EPA
recognized in the ANPR,
31 Seth Lyman et al., Utah State University, Final Report: 2013-14 Uintah Basin Winter Ozone Study 6 (Oct. 31,
2014), http://rd.usu.edu/files/uploads/2014_ubos_final_report.pdf (Appx. at 341). 32 See Laura Paskus, On the Front Lines: Diné Women Stand Firm Against Increased, Unfettered Oil Development,
INDIAN COUNTRY TODAY (Mar. 8, 2015), http://indianCountrytodaymedianetwork.com/2015/03/08/front-lines-
dine-women-stand-firm-against-increased-unfettered-oil-development-159512. 33 Rebecca Tsosie, Indigenous People and Environmental Justice: The Impact of Climate Change, 78 U. COLO. L.
REV. 1625, 1630 (2007) (Appx. at 370). 34 Southern Ute Tribe, Environmental Programs Division, Air Quality Program, Southern Ute Indian Tribe Ambient
Air Monitoring Data/NAAQS Comparison (2001–2014) at 3 (June 25, 2014), www.southernute-nsn.gov/wp-
content/uploads/2013/05/La-plata-2014.pdf (Appx. at 403). 35 EPA, 2014 Design Value Reports: Ozone (July 20, 2015),
http://www3.epa.gov/airtrends/pdfs/Ozone_DesignValues_20122014_FINAL_08_03_15.xlsx (monitor level data is
available at tab five of the spreadsheet).
47
[O]ur understanding of the oil and natural gas sector’s impact on ambient air quality in
Indian country is incomplete at this time given the absence of ambient air quality
monitoring sites in many areas of Indian country. At the same time, with the prospect of
continued significant growth in emissions from the oil and natural gas sector, it may be
necessary or appropriate to impose emissions control requirements on existing emissions
units. More detailed information on the air quality in a region would help us better
understand whether emission reductions from existing sources are necessary or
appropriate to accommodate emissions growth while still protecting public health.36
EPA provided a map (excerpted as Figure 1 below and attached, Appx. at 407), which shows that
most areas of Indian Country lack any monitoring coverage. As shown on Figure 1, several
reservations in oil and gas producing areas also lack monitors, including the Jicarilla Apache,
Ute Mountain Ute, FBIR, and Crow Reservations.
FIGURE 1
Earthjustice et al. (0044): In response to the ANPR, there were extensive comments detailing
EPA’s authority to expand monitoring, why additional monitoring is necessary, monitoring
programs that EPA could implement in Indian Country. [EDF ANPR Comments at 11, 13–14;
Coalition ANPR Comments at 29–30.] Environmental and Tribal Commenters hereby
incorporate our ANPR monitoring comments by reference, and ask EPA to consider them in the
36 79 FR 32519; see also id. at 32508 (“These uncertainties are due in part to the scarcity of ambient air monitoring
in some areas of Indian country.”); id. at 32511 (“[A] number of areas of Indian country lack a robust monitoring
network.”).
48
current rulemaking. More detailed comments on specific ways that EPA should improve
monitoring requirements in the final rule are included below. [See infra pp. 30–31.]
As discussed above, see supra pp. 8–9, in the ANPR, EPA recognized that the lack of monitors
in Indian Country poses a significant barrier to implementing the regulations necessary to protect
public health. The agency sought comments on “whether and how we might use our CAA
section 114 or other CAA authority to require oil and natural gas sources in Indian Country to
install and operate ambient air monitors.” [Id.] Despite this earlier recognition, the Proposed FIP
does not contain increased monitoring requirements. In fact, the agency makes no reference to
the lack of monitoring in Indian Country. EPA briefly references monitoring requirements by
noting that some of the elements of the six regulations implemented by the FIP include
monitoring requirements.37 But the Proposed FIP does not include any additional monitoring
requirements to remedy the lack of monitors in Indian Country.
This lack of monitors is especially concerning because, in the Proposed FIP, EPA states that it
will address nonattainment in Indian Country by implementing reservation-specific FIPs when
necessary. [80 FR 56570.] But as EPA itself observed in the ANPR, many reservations lack
monitors, or lack sufficiently detailed or robust monitors to demonstrate that an area is in
nonattainment. In EPA’s own words, “[u]sing design values or attainment status to identify areas
in need of enhanced environmental protection may yield results that are not 28 equitable and/or
fully protective of air quality, due to the scarcity of monitoring in Indian Country.” [79 FR
32517.]
The most efficient and expedient method of providing such a monitoring network is requiring
operators to install and operate monitors. [See Coalition ANPR Comments at 29; EDF ANPR
Comments at 11.] Monitoring data must also be made readily available to tribes, tribal members,
and the public. Monitoring options are available at very reasonable costs. For example, EPA
recently certified inexpensive, portable ozone monitors as a federal equivalent method for
monitoring ambient ozone concentrations. [75 FR 22126, 22,126 (Apr. 27, 2010).] Such “Model
202” monitors are commercially available and require only a power adapter plugged into a
vehicle’s cigarette lighter. [Id. at 22126-27.]
Earthjustice et al. (0044): EPA has authority under CAA § 114 to require operators to install
and operate air quality monitors. [Coalition ANPR Comments at 29; EDF Comments at 11.]
Section 114 authorizes EPA, for the purpose of “carrying out any provision of [the CAA],” to
“require any person who owns or operates any emission source” to “install, use, and maintain
such monitoring equipment” and “provide such other information as [EPA] may reasonably
require.” [42 U.S.C. § 7414(a)(1)(C), (G).] This gives EPA authority to require operators to
install and operate ambient air quality monitors at emissions sources. EPA recently relied on §
114 to require oil and gas sector sources to monitor and report their methane emissions. [75 FR
74458 (Nov. 30, 2010).]
37 See 80 FR 56563 (“The proposed FIP requirements cover . . . monitoring . . . .”); 56569 (“The rationale
supporting the . . . monitoring . . . for each of the six federal rules is found in the preambles and background
documents for those rulemakings.”).
49
Two industry ANPR commenters questioned EPA’s § 114 authority to require operators to
install monitors.38 Both commenters claim that § 114 only authorizes EPA to create source-
specific monitoring requirements, and that ambient air quality monitoring is beyond the scope of
§ 114. However, nothing in the language of § 114(a) limits EPA’s authority to source-specific
monitoring. Although the subsections of § 114(a)(1) that GPA quotes are focused on source-
specific monitoring, GPA conveniently omitted other subsections which give EPA authority to
require operators to “provide such other information as [EPA] may reasonably require.” [42
U.S.C. § 7414(a)(1)(G).]
Additionally, EPA has authority to require monitoring “[f]or the purpose of developing or
assisting in the development of any implementation plan under section 7410 or section 7411(d)
of this title.” [42 U.S.C. § 7414(a).] Accordingly, EPA has explicit authority to require
monitoring to develop a FIP.
GPA also argues the CAA’s 1970 legislative history, which discussed EPA’s authority to enter
the premises of a regulated entity, indicates that EPA only has authority to conduct source-
specific monitoring under § 114. [GPA Comments at 10.] Although EPA’s authority to enter
premises for inspection is discussed in both the 1970 legislative history and the statute itself, 42
U.S.C. § 7414(a)(2), Congress did not preclude EPA from also requiring ambient monitoring.
The two forms of monitoring can provide synergistic information to the agency to aid it in
developing rules that appropriately regulate emissions at the source-specific level while
simultaneously protecting air quality on a broader scale.
Earthjustice et al. (0044): When EPA requires operators to install monitors, it should also ensure
that that the monitors are operated in the appropriate season. Meteorology and geography make
some parts of Indian Country—notably the Uintah and Ouray Reservation in Utah and the Wind
River Reservation in Wyoming—susceptible to thermal inversions that result in significant
wintertime ozone formation. Recognizing this phenomenon, the 2015 Ozone NAAQS rule
extends the ozone monitoring season in states that are potentially subject to wintertime ozone
formation, including Utah, Wyoming and Colorado. [80 FR 65416.] EPA should similarly ensure
that monitors installed in Indian Country operate during the appropriate season. If they are
located in geographically-confined basins with winter snowpack, monitors should operate in the
winter in addition to the traditional summertime ozone season.39
38 QEP, Specific Responses to EPA Request for Comments tbl. at 8 (Aug. 27, 2014); Comments of Gas Processors
Association on Managing Emissions from Oil and Natural Gas Production in Indian Country; Docket ID Number
EPA-HQ-OAR-2011-0151 at 9–10 (Aug. 20, 2014) (“GPA Comments”) (citing 42 U.S.C. § 7414(a)(1)(A)–(D)). 39 See, e.g., Samuel Oltmans et al., Anatomy of a Wintertime Ozone Associated with Oil and Natural Gas Extraction
Activity in Wyoming and Utah, 2 ELEMENTA 24, 24 (2014) (Appx. at 2220) (describing how geographic and
meteorological differences between the Upper Green River Basin and Uinta Basin contribute to differential ozone
formation patterns in the two regions); D. Helmig et al., Highly Elevated Atmospheric Levels of Volatile Organic
Compounds in the Uintah Basin, Utah, 48 ENVTL. SCI. & TECH. 4707, 4714 (2014) (Appx. at 2235) (describing
how multi-day inversions can contribute to extreme ozone buildup in intermountain valleys); Marc Mansfield &
Courtney Hall, The Potential for Ozone Production in the Uintah Basin: A Climatological Analysis, in Utah Dep’t
Envtl. Quality, 2012 Uintah Basin Winter Ozone & Air Quality Study: Final Report 251, 253 (Seth Lyman &
Howard Shorthill eds., 2013) (describing how thermal inversions form in intermountain basins during the winter)
(Appx. at 1597); P.M. Edwards et al., Ozone Photochemistry in Oil and Natural Gas Extraction Region During
Winter: Simulations of a Snow-Free Season in the Uintah Basin, Utah, 13 Atmospheric Chemistry & Physics
50
Earthjustice et al. (0044): In the Proposed FIP, EPA notes that during consultation with the
Mandan, Hidatsa, and Arikara Nations of FBIR, Ute Tribe of the Uintah and Ouray Reservation,
and Crow Nation, the tribes “expressed a need for greater resources so that they can implement
their own environmental programs as they determine in their own lands.” [80 FR 56572.] In its
ANPR comments, the Southern Ute Tribe expressed support for requiring larger emission
sources to install monitors, and stated that it “strongly supports any actions taken to increase the
presence of air quality monitoring stations in Indian Country that are maintained by an
appropriate governmental or regulatory agency to ensure proper quality assurance and quality
control checks are performed, siting criteria are met, and these data are un-biased.”40 Providing
additional monitors which tribes can use to implement environmental programs on their own
lands is one source of such resources. Requiring operators to install monitors, and ensuring that
tribal governments have access to data from them, would provide tribal governments with
resources they can use to apply for Treatment as a State status, develop TIPs, and enforce federal
and tribal environmental laws.
Earthjustice et al. (0044): The Proposed FIP provides few, if any, enforcement tools. Although
EPA notes that citizens (and EPA itself) can initiate enforcement suits against operators that
violate the terms of the FIP, such post hoc enforcement strategies likely involve lengthy and
costly lawsuits well after the harm from increased air pollution has been suffered. [See 80 FR
56570.] EPA should clarify and expand enforcement requirements in the final rule.
For example, § 113 provides mechanisms for EPA to enforce non-compliance with SIPs, which
involve notifying states. [See 42 U.S.C. § 7413(a)(1)-(2).] EPA should specify in the final rule
how this will apply on tribal lands, and whether and how tribal governments will be notified of
violations. EPA should also provide guidance about the role of tribal governments in enforcing
the six regulations that make up the FIP. Many of these regulations already involve operators
submitting information to the EPA. [See, e.g., 40 CFR § 60.5420.] But some contemplate roles
for states. For example, a section of the current NSPS regulations, 40 CFR § 60.5423(e),
provides that EPA can delegate and approve state compliance programs as an alternative to
operators reporting excess emissions directly to EPA. EPA should specify whether tribes can
similarly apply for delegation of compliance authority.
Earthjustice et al. (0044): EPA should also add enforcement requirements to the final rule. In
the ANPR, EPA solicited comments about Next Generation Compliance techniques. [79 FR
32519–20.] However, EPA makes no reference of Next Generation Compliance in the Proposed
FIP. ANPR comments identified Next Generation Compliance techniques that EPA can
Discussions 8955, 8967–68 (2013) (Appx. at 2125) (explaining how snow-cover albedo contributes to ozone
formation and describing potential for multi-day ozone precursor buildup because VOCs do not disperse at night);
William P.L. Carter & John H. Seinfeld, Winter Ozone Formation and VOC Incremental Reactivities in the Upper
Green River Basin of Wyoming, 50 ATMOSPHERIC ENVT. 255, 255 (2012) (Appx. at 1628) (explaining how
geography of walled-in intermountain basins contributes to ozone buildup); John H. Seinfeld & Spyros N. Pandis,
Atmospheric Chemistry & Physics: From Air Pollution To Climate Change 721–22, 729–30 (2d ed. 2006)
(describing how thermal inversions contribute to ozone formation). 40 Comments of Clement J. Frost, Chairman, Southern Ute Indian Tribal Council on Docket No. EPA-HQ-OAR-
2011-0151 – Managing Emissions from Oil and Natural Gas Production in Indian Country at 6 (Aug. 18, 2014).
51
implement in Indian Country.41 Environmental and Tribal Commenters incorporate these
comments by reference and encourage EPA to implement Next Generation Compliance
techniques in the final rule. However, any Next Generation Compliance techniques that are
chosen must actually reduce emissions. Adopting Next Generation Compliance options should
not sacrifice emissions reductions in order to lessen the burden on industry.
Earthjustice et al. (0044): Beyond innovative compliance strategies, EPA should also robustly
pursue standard enforcement procedures in Indian Country. The agency should ensure that
Regional Offices have sufficient personnel dedicated to enforcing the FIP. Because Indian
Country is geographically large, dispersed, and remote, EPA should explain how it plans to
enforce the FIP nationwide, including intra-agency delegation of responsibility and methods for
tribes and citizens to report violations. Moreover, EPA should provide tribes with resources,
training, and legal authority to initiate their own enforcement actions. Although some tribes have
robust environmental agencies and ample legal support to enforce environmental laws, most
tribes do not.42 In the final rule, EPA should identify training sessions, publish guidelines, and
offer contact information for agency staff who can support tribal governments that wish to take a
more active role in enforcing the FIP.
Finally, EPA should add provisions to the final rule that govern how EPA enforcement staff will
cooperate with other federal agencies, tribal officials, state officials, and local government
authorities. In areas like the San Juan Basin, development occurs on a patchwork of tribal trust,
federal, state, allotted, and privately-owned lands. Air pollution moves readily across these
jurisdictional boundaries, and any successful enforcement strategy must involve cooperation and
coordination between government officials from all levels of government.
Earthjustice et al. (0044): The Proposed FIP should also include requirements to improve air
quality monitoring and modeling within Indian Country. As EPA recognized in the ANPR, “our
understanding of the oil and natural gas sector’s impact on ambient air quality in Indian Country
is incomplete at this time given the absence of ambient air quality monitoring in many areas of
Indian Country.” [79 FR 32519.] Furthermore, increased monitoring will be critical for
determining whether reservation- or area-specific FIPs are necessary. EPA should also conduct
modeling, especially in the process of developing reservation- or area-specific FIPs, in order to
improve understanding of how oil and gas sources contribute to air quality issues in Indian
Country.
Earthjustice et al. (0044): Without preconstruction review, robust enforcement is necessary to
ensure that regulated entities comply with the Proposed FIP and all applicable requirements. But
the Proposed FIP does not provide for any additional and needed enforcement measures. EPA
should remedy this shortcoming in the final rule by increasing enforcement capacity. It is critical
that EPA provides for cooperation between federal, state, and tribal enforcement actions so as to
ensure that the patchwork of jurisdictions that characterize many areas of Indian Country do not
create a barrier to robust enforcement.
41 See EDF ANPR Comments at 14–15 (self-certification and photographic verification); Coalition ANPR
Comments at 30-–31 (optical gas imaging, LDAR, and cavity ring-down spectroscopy). 42 See Jana B. Milford, Out in Front? State and Federal Regulation of Air Pollution Emissions from Oil and Gas
Production Activities in the Western United States, 55 NAT. RES. J. 1, 13–14 (2014) (Appx. at 1640).
52
Coalition ANPR Comments - referenced by Earthjustice et al. (0044): The damage to air
quality and climate from leaks and other types of emissions associated with oil and gas
development is clear. Environmental Commenters recognize that the oil and gas industry
presents unique compliance challenges, and that resources to ensure compliance are finite. We
therefore support the use of innovate technologies that allows the more rapid and efficient
reporting of emissions. For example, we strongly support the use of OGI, which reduces the cost
of inspecting facilities for leaks, making frequent LDAR surveys possible across the industry.
Moreover, this is an essential means of reducing emissions of VOC and HAPs that are degrading
air quality.
But we must note that any preference for Next Generation Compliance must reduce emissions;
the choice of such options cannot sacrifice much needed emissions reductions in order to lessen
the burden on industry. We are aware of no innovative monitoring technologies that are currently
able to ensure facilities do not have leaks or excessive emissions. Very sensitive technologies,
such as cavity ring-down spectroscopy, are able to quantify methane concentration at low levels,
but the calculation of concentration measurements is not always straightforward. Work remains
to make such technologies operational with methods that are able to assure regulators and the
public that excess emissions are not occurring.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): We respectfully recommend
that EPA incorporate next generation compliance measures into the compliance and enforcement
provisions of the FIP. Next generation compliance measures may include advanced pollution
monitoring, electronic reporting, increased transparency, innovative enforcement strategies, and
manufacturer certification of control technologies.43 Subpart OOOO provides several examples
of next generation compliance measures that EPA could consider incorporating into this
rulemaking.44 We urge the agency to consider the following next generation compliance
measures:
• Self-certification. Under Subpart OOOO, all owners and operators are required to
submit annual reports detailing any deviation from well completion and re-
completion requirements. [See 40 CFR §§ 60.5420(b)(1)(iv), 63.775(e)(2)(xiv); 77
FR 49509.] The reports must contain documentation of compliance with the
standards, such as through records of installation of no-bleed devices, and
documentation that a reduced emission completion was utilized. [40 CFR §
60.5420(b).] A responsible, senior company official must certify the “truth, accuracy,
and completeness” of these reports. [40 CFR § 60.5420(b)(1)(iv)] Rigorous
notification and reporting procedures should be incorporated into a FIP in order to
reduce reliance on physical inspections or audits and hold accountable those in the
43 For a discussion of EPA’s next generation compliance and enforcement, see Cynthia Giles, Assistant
Administrator EPA Office of Compliance and Enforcement, Next Generation Compliance, Environmental Forum 22
(Sept.–Oct. 2013). For further detail and examples of next generation compliance measures, see EPA, Office of
Enforcement and Compliance Assurance (OECA), Appendix: Annotations and References, EPA Article: Next
Generation Compliance, available at http://www2.epa.gov/sites/production/files/2013-08/documents/giles-next-gen-
article-forum-eli-sept-oct-2013-appendix.pdf (last visited July 15, 2014). 44 See Oil and Natural Gas Sector: New Source Performance Standards and National Emissions Standards for
Hazardous Air Pollutants Reviews, 77 FR 49490 (Aug. 16, 2012).
53
best position to assure compliance. Because of the remoteness and large number of
affected sources, it is also important to couple self-certification with sufficient
penalties for knowingly submitting false statements.
• Photographic Verification. In Subpart OOOO, EPA also took advantage of new
technologies to provide improved assurance of compliance with key requirements.
For example, Subpart OOOO requires operators to file a streamlined, self-certified
report that lists all gas well completions and contains time- and location-stamped
electronic or hard copy photographs documenting required reduced emission
completions. [Id.] Similarly, modern optical gas imaging (OGI) instruments, which
allow for rapid and cost-effective leak detection at a variety of oil and gas facilities,
are equipped with recording functions that would help regulators verify the
completeness and integrity of leak detection surveys. These requirements would
provide better information concerning potential violations and increase EPA
oversight, with minimal administrative burden.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): The oil and gas industry
is responsible for substantial emissions of air pollutants that harm public health and the
environment. Emission sources include drilling, hydraulic fracturing and completion activities,
well operation and maintenance, transport and distribution of oil and gas, and road, well pad, and
pipeline construction. [79 FR 32505-08] The oil and natural gas industry is unique in that it is
comprised of numerous, geographically dispersed sources that may individually contribute a
relatively small amount of pollution, but that collectively lead to serious air pollution problems.
Pollutants emitted include volatile organic compounds (VOCs) and nitrogen oxides (NOx),
which react in the atmosphere to form ground-level ozone or smog. Ozone is a dangerous air
pollutant that impairs breathing, aggravates asthma, increases emergency room visits, and may
lead to premature deaths. [73 FR 16436, 16476 (Mar. 27, 2008).] Newborns, asthmatic children,
and outdoor workers are at increased risk from ozone pollution. Ozone pollution also harms
plants and important ecosystems, including national forests and parks, wildlife refuges, and
wilderness areas.45 In fact, ozone pollution causes more damage to plants than all other air
pollutants combined.46 Ozone also contributes substantially to climate change over the short
term. According to the United Nations Environment Program (UNEP), behind carbon dioxide
and methane (discussed below), ozone is now the third most significant contributor to human-
caused climate change.47
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Absent adequate air
pollution controls, emissions on tribal lands will increase due to rapid development of oil and
natural gas reserves. EPA notes in the ANPR that “[m]any areas of Indian country are located in
45 See EPA, Ground-Level Ozone, Ecosystem Effects, available at
http://www.epa.gov/groundlevelozone/ecosystem.html. 46 See USDA, Effects of Ozone Air Pollution on Plants, available at
http://www.ars.usda.gov/Main/docs.htm?docid=12462. 47 United Nations Environment Programme and World Meteorological Organization, Integrated Assessment of
Black Carbon and Tropospheric Ozone: Summary for Decision Makers (2011), (“UNEP Report”) available at
http://www.unep.org/dewa/Portals/67/pdf/Black Carbon.pdf.
54
shale basins with potentially recoverable reserves.”48 Areas with significant reserves include the
Jicarilla Apache, Navajo, Southern Ute, Fort Berthold, and Uintah Reservations. Below, we
supplement the information in the ANPR and show that emissions from oil and gas development
will continue to worsen if not comprehensively addressed.
Moreover, oil and natural gas production on tribal lands is already a major source of emissions
that warrants prompt regulatory protections. Indian country accounts for the majority of oil- and
gas-producing areas in the Uinta and North San Juan Basins, and is significant in the South San
Juan and Wind River Basins. Portions of the Powder River and Williston Basins in Montana are
also composed of tribal lands. Data from the U.S. Energy Information Administration (“EIA”)
shows that, in 2013, natural gas sales of production from Indian lands amounted to 239 bcf, and
crude oil and lease condensate sales of production from Indian lands amounted to 267 trillion
Btu.49 Further, as the information EPA presents in the ANPR indicates, Indian lands with oil and
gas deposits are experiencing significant growth in the production segment. [ANPR, 79 FR
32509–13.] According to the EIA’s June 2014 report on fossil fuel production from federal and
Indian lands, tribal oil production has boomed to 46 million barrels in 2013, a 48% increase over
the last year and more than quadruple the level of production seen in 2009. [EIA 2014.]
Meanwhile, sales of gas produced on tribal lands have actually decreased by 5% in the last year
and 10% since 2009. [Id.] The EIA also projects that shale gas production will more than double
between 2012 and 2040, and, by 2040, shale gas will account for 53% of total domestic natural
gas production, which will have significant impacts in Indian country.50
Data suggest emissions associated with these activities are also significant. According to a recent
Western Regional Air Partnership emissions inventory, oil and natural gas production sources
contribute the majority of NOx emissions and a large portion of VOC emissions in the region
composed of New Mexico, Colorado, Utah, Wyoming, Montana, and North Dakota.51 In North
Dakota, EPA’s recent FIP for the Fort Berthold Indian Reservation concluded that a typical,
uncontrolled well pad in the area produces 4,330 tons of VOCs per year.52 Figures 1 and 2,
below, show the estimated VOC emissions from oil and gas development on tribal areas within
the Uintah and South San Juan Basins in 2008. [See EPA-HQ-OAR-2011-0151-DRAFT for
Figures 1 and 2.]
48 Managing Emissions From Oil and Natural Gas Production in Indian Country, 79 FR 32502, 32,508 (proposed
June 5, 2014). 49 U.S. Energy Info. Admin., Sales of Fossil Fuels Produced From Federal And Indian Lands, FY 2003 Through FY
2013 at 3 (June 2014), available at http://www.eia.gov/analysis/requests/federallands/pdf/eia-federallandsales.pdf. 50 U.S. Energy Information Administration, Annual Energy Outlook 2014 at MT-23 (April 2014), available at
http://www.eia.gov/forecasts/aeo/pdf/0383(2014).pdf. 51 ENVIRON International Corp. & Western Energy Alliance, A Comprehensive Emissions Inventory of Upstream
Oil and Gas Activities in the Rocky Mountain States, prepared for the Western Regional Air Partnership (July
2013), available at http://www.epa.gov/ttnchie1/conference/ei19/session8/barilan.pdf; Institute of Arctic and Alpine
Research (“INSTAAR”) & University of Colorado, Boulder, Highly Elevated Atmospheric Levels of Volatile
Organic Compounds in the Uintah Basin, Utah, ENVTL. SCI. TECH. (accepted for publication, Mar. 13, 2014),
available at http://pubs.acs.org/doi/pdf/10.1021/es405046r. 52 Approval and Promulgation of Federal Implementation Plan for Oil and Natural Gas Well Production Facilities;
Fort Berthold Indian Reservation, 77 FR 48878 (Aug. 15, 2012).
55
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Air quality in tribal areas
with oil and natural gas development is worsening, and rapid development of oil and gas
resources is already having a significant impact on public health and the environment in tribal
areas. Wintertime ozone concentrations in Utah’s Uinta Basin exceeded federal air quality
standards almost 70 times in the first three months of 2010 and have sometimes reached levels
almost twice as high as the federal standard.53 Utah determined that oil and gas operations
contribute 98–99 percent of VOC emissions and 57–61 percent of NOx emissions in the Uintah
Basin.54 Similarly, Wyoming attributes 94 percent of VOC emissions and 60 percent of NOx
emissions to oil and gas activities.55 And Figures 3 and 4, below, show ozone concentrations at
various Southern Ute Tribe air quality monitoring stations in Colorado. Many of the monitors
have exceeded or have come close to exceeding the current ozone NAAQS of 75 ppb. [See EPA-
HQ-OAR-0151-DRAFT for Figures 3 and 4].
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): The Uinta Basin in
northeastern Utah and western Colorado suffers from severe ozone pollution caused largely by
oil and gas development. Ozone normally is associated with urban pollution centers during the
hot summer months, but the Basin’s ozone concentrations occur during winter when snow is on
the ground. Over the past several winters, the Uinta Basin has repeatedly experienced 8-hour
ozone episodes above 0.075 parts per million (ppm) — the federal threshold for healthy air.56 In
fact, under the federal standard, EPA should classify the Uinta Basin as a nonattainment area for
ozone. Monitors within the Uinta Basin have also recorded elevated levels of fine particulate
pollution. [79 FR 32510.] According to Utah Department of Environmental Quality (DEQ),
approximately 85% of existing development is within the Uintah and Ouray Indian Reservation,
where the Ute Tribe and EPA have regulatory authority.57 According to EPA, there are currently
around 7,000 wells located on the Ute reservation. [79 FR 32509.] Studies have shown that
existing development is largely responsible for the ozone pollution in the Basin. There is also
ample evidence that oil and gas development is leading to ozone pollution, visibility impairment,
and nitrogen deposition at Dinosaur National Monument as well as some of Colorado’s and
Utah’s iconic national parks.
Monitoring data compiled in EPA’s Air Quality System demonstrates a long record of
exceedances of the 2008 ozone standard of 0.075 ppm in the Uinta Basin (Uintah and Duchesne
counties).58 Monitors maintained by the tribe as well as state and federal monitors have
53 Scott Streater, Air Quality Concerns May Dictate Uintah Basin's Natural Gas Drilling Future, N.Y. TIMES, Oct.
1, 2010, available at http://www.nytimes.com/gwire/2010/10/01/01greenwire-air-quality-concerns-may-dictate-
uintah-basins-30342.html?pagewanted=1 (last visited Sept. 28, 2011). 54 See Utah Dept. of Envtl. Quality, Ozone in the Uintah Basin (Sept. 2013), available at
http://www.deq.utah.gov/Topics/FactSheets/docs/handouts/ozone2013.pdf. 55 Wyo. Dept. of Envtl. Quality, State of Wyoming Technical Support Document I for Recommended 8-Hour Ozone
Designation for the Upper Green River Basin, WY (March 2009), available at
http://www.epa.gov/groundlevelozone/designations/2008standards/rec/letters/08_WY_rec.pdf. 56 The federal standard is a 3-year average of the annual 4th highest 8-hour average, which cannot be greater than
0.075 ppm. 57 Utah Division of Air Quality, Cracking the Ozone Code: Scientists and Policymakers Search for Solutions,
available at http://www.deq.utah.gov/locations/U/uintahbasin/ozonecode.htm. 58 Available at http://www.epa.gov/airdata/.
56
repeatedly recorded pollution levels well above the federal standard set to protect public health
and welfare.
For example, in 2010, the Redwash and Ouray monitors in Uintah County measured 30 and 38
exceedances of the ozone NAAQS, respectively.59 The highest daily 8-hour concentrations at
these monitors were 0.105 and 0.123 ppm. The fourth highest values were 0.098 and 0.117 ppm.
In 2011, the Redwash and Ouray monitors each measured more than 20 exceedances of the
ozone NAAQS. The highest monitored levels reached 0.125 and 0.139 ppm, respectively. Two
other monitors in Uintah County also measured NAAQS exceedances, including the monitor
within Dinosaur National Monument (discussed in more detail below). The highest monitored
value at Dinosaur reached 0.106 ppm. Also in 2011, the Myton monitor in Duchesne County
measured 19 exceedances, with a high value of 0.124 ppm.
A Utah Division of Air Quality (DAQ) study conducted between December 2010 and March
2011 confirmed the extreme ozone levels in the Uinta Basin.60 In conjunction with Utah State
University and the Energy Dynamics Laboratory, the Utah DAQ compiled data from six existing
monitors and installed ten new monitors throughout the Uinta Basin to determine the extent and
severity of the ozone problem.61 In total, the monitors measured 186 ozone exceedances.62 With
respect to the highest 8-hour concentrations, seven sites exceeded 0.115 ppm, with three of those
sites measuring between 0.120 ppm and 0.134 ppm, and two sites exceeding 0.134 ppm. With
respect to the fourth-highest, 8-hour concentrations, seven sites exceeded 0.100 ppm, with three
sites exceeding 0.115 ppm, and one site exceeding 0.120 ppm.63 Ozone monitoring data from
2013 further underscores the extent and severity of ozone pollution within the Uinta Basin. In
fact, the winter of 2013 appears to have been one of the worst recorded ozone seasons in the
Uinta Basin. Six monitors recorded exceedances of the ozone NAAQS. At four monitors, more
than 20 exceedances were recorded. Peak 8-hour ozone concentrations reached as high as 0.126
ppm, nearly 70% higher than the NAAQS. For the majority of monitors, the fourth highest
readings were above 0.100 parts per million. The table below summarizes the data from 2013.
[See pg. 6 of EPA-HQ-OAR-2011-0151-0109-A1 for Table “Certified Ozone Monitoring Data
from 2013 in Duchesne and Uintah Counties, Utah”]
For comparison, the highest ozone level monitored in Los Angeles County in 2013 was 0.104
ppm. The exceedances are not limited to the Utah portion of the Uinta Basin. The Rangely
59 Through a series of consent decrees that resulted from a series of EPA enforcement actions against oil and gas
companies operating in the Uinta Basin, EPA has required private companies to install and operate ambient air
quality monitors in the Basin. The two monitors, known as the Redwash and Ouray monitors, located within Indian
country, have been monitoring ozone levels since 2009. See U.S. v. Kerr-McGee Corp., No. 07-CV-01034-
EWNKMT, 2008 WL 863975, at *2 (D. Colo. Mar. 26, 2008); see also United States v. Kerr-McGee Corp., Case
1:07-cv-01034-EWN-KMT, 80–82 (D. Colo. May 17, 2007) (“KM Decree”); United States v. Colo. Interstate Gas
Co., Case 2:09-cv-00649-TS, 11–14 (D. Utah, July 23, 2009) (“CIG Decree”); United States v. Miller, Dyer & Co.,
LLC, Case 2:09-cv-00332-DAK, 42 (D. Utah, Sept. 23, 2009) (“MD Decree”). 60 Energy Dynamics Foundation, Final Report, Uinta Basin Winter Ozone Study (2011), available at
http://rd.usu.edu/files/uploads/ubos_2010-11_final_report.pdf. 61 Id. at 19. 62 See id. at 42. 63 Id. at 42, 97.
57
monitor, located at the eastern edge of the Uinta Basin in Rio Blanco County, Colorado, has also
recorded ozone exceedances. For example, in 2013, the monitor measured a maximum 8-hour
concentration of 0.106 ppm, and a fourth highest concentration of 0.91 ppm. Using the
procedures established in 40 CFR § 50, Appendix P, the three-year average of the fourth highest
values for the Rangely monitor from 2010 to 2013 is 0.077.
[See pg. 6 of EPA-HQ-OAR-2011-0151-0109-A1 for Table “8-Hour Ozone Monitoring Data
and 2011-2013 Design Value for Rio Blanco County Monitor”]
Given the high measured ozone concentrations in the Uinta Basin, this area should be, but is not
currently, designated as a nonattainment area. The Colorado Department of Public Health has
acknowledged that the design value at the Rangely monitor is above the NAAQS.64 Monitors in
Utah are also noncompliant with the 2008 standard. For example, the three-year average of the
fourth-highest values from 2009 to 2011 for the Redwash monitor was 0.088 ppm and for the
Ouray monitor was 0.100 ppm.65 However, EPA has yet to designate the Uinta Basin as a
nonattainment area.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Recent studies
demonstrate that (1) ozone in the Uinta Basin forms primarily from VOC emissions, (2) oil and
gas operations in the Uinta Basin are the most significant source of VOC emissions, and (3) oil
and gas VOC emissions are largely responsible for wintertime ozone in the Uinta Basin. As EPA
recognized in the ANPR, a recent study found that oil and gas operations in the Uinta Basin
released 98 to 99% of all VOC emissions and 57 to 61% of all NOx emissions. [79 FR 32510].
Another recent study published in the journal, Environmental Science and Technology found,
among other things, that:
• Oil and gas development in the Uinta Basin releases as much VOC pollution as 100
million passenger vehicles;
• There is a strong causal link between oil and gas emissions, including emissions of
methane and VOCs, and production of wintertime ozone; and
• Snow cover in the wintertime enhances the formation of ozone.66
Likewise, the latest report in the ongoing Uinta Basin Ozone Study prepared by the Utah
Division of Air Quality, which was released in early April of 2014, found:
• Wintertime pollutant concentrations measured at Ouray reached 142 ppb during the
December 2012 to March 2013 study period, exceeding the NAAQS limit of 75 ppb
by 89 percent. In 2013, wintertime exceedances of ozone standards occurred at 17 of
64 Colorado Department of Public Health, Air Quality Control Commission, October 17, 2013 Meeting Materials,
Review of the 2013 Ozone Season, slides 5-6, 12-13, available at
http://www.colorado.gov/cs/Satellite?c=Page&childpagename=CDPHEAQCC%
2FCBONLayout&cid=1251646397663&pagename=CBONWrapper. 65 Comment by WildEarth Guardians to EPA Regarding Ozone Designation Recommendations for the 2008 Ozone
NAAQS, Doc. # EPA-HQ-OAR-2008-0476-0440, at 14–16. 66 Helmig et al., Highly Elevated Atmospheric Levels of Volatile Organic Compounds in the Uintah Basin, Utah, 48
Environ. Sci. Technol. 4707-15 (2014), available at http://pubs.acs.org/doi/abs/10.1021/es405046r.
58
20 monitoring sites in the Uinta Basin, with 22 days of exceedances reported in
Vernal and 29 days in Roosevelt. There also were seven multi-day ozone episodes
above NAAQS levels.
• Wintertime ozone episodes in the Uinta Basin are linked to high levels of methane,
VOC, and NOx, emissions and that the oil and gas industry is the predominant source
of these ozone precursor emissions; and
• Reductions in all VOC emissions will be beneficial in reducing ozone.67
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Monitors in Uintah
County and Duchesne County have measured wintertime PM2.5 concentrations above federal
standards.68 These elevated PM2.5 levels have been linked to oil and gas activities in the Uinta
Basin.69 Modeling also shows that road traffic associated with energy development is elevating
PM10 levels.70
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): There is substantial
existing oil and gas development within the Uinta Basin. According to Utah DEQ, 90% of the
existing development is within Indian country.71 As EPA acknowledges, development within the
Uinta Basin is only expected to increase, resulting in additional pollution.72 The U.S. Bureau of
Land Management (BLM) anticipates that “reasonably foreseeable” development in just the
southern half of the Uinta Basin will include more than 21,000 wells.73
Likewise, the Ute Tribe anticipates significant portions of this additional development to occur
within the boundaries of its reservation. [79 FR 32509.] Indeed, Federal land managers have
already approved thousands of additional wells, and EPA notes that BLM has approved
construction of more than 5,000 new wells in the Uinta Basin and “even more projects are
anticipated for future NEPA review.” [Id. at 32508.] For example, on May 8, 2012, BLM
approved drilling of up to 3,675 oil and gas wells as part of Greater Natural Buttes Project.74 The
project is anticipated to increase NOx emissions by 2,213 tons per year and VOC emissions by
6,617 tons per year (representing emissions increases from existing levels of 22% and 4%
respectively). [Greater Natural Buttes Final EIS, Chapter 4, at 4-12.] BLM modeled a predicted a 67 Environ, Final Report 2013 Uinta Basin Ozone Study (Mar. 2014), available at
http://www.deq.utah.gov/locations/U/uintahbasin/studies/UBOS-2013.htm; see also Utah Division of Air Quality,
Uinta Basin Ozone Study, “Summary of Findings from the Uintah Basin Ozone Study: Preliminary Update from
2013 Field Study,” Utah State University, University of Utah, National Oceanic and Atmospheric Administration,
ENVIRON, University of Colorado, Utah Department of Environmental Quality and EPA 2013, available at
http://www.westernenergyalliance.org/sites/default/files/ SummaryFindings _UBSO2013_23Sep2013.pdf. 68 79 FR 32510; BLM, Gasco Energy Inc. Field Development Final Environmental Impact Statement (Gasco
FEIS”), at 3-13, available at http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html. 69 West Tavaputs FEIS at 3-20. 70 Gasco FEIS at 4-33. 71 See http://www.deq.utah.gov/locations/U/uintahbasin/regulation.htm. 72 79 FR 32508 (“Another area of increasing oil and natural gas development is the Uintah and Ouray Indian
Reservation in northeast Utah, within the Uinta Basin.” 73 BLM, Greater Natural Buttes Final Environmental Impact Statement (FEIS), Chapters 5-9, at 5-1, 5-9 (defining
the cumulative impacts analysis area as the southern half of the Uinta Basin and estimating 21,293 wells as a result
of “reasonable foreseeable projects”), available at http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html. 74 BLM, Greater Natural Buttes Record of Decision (ROD), at 3-1 (May 2012), available at
http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html.
59
2.4 parts per billion (ppb) increase in ozone levels as a result of the project, although the model
did not allow for predictions of extreme wintertime events when the highest emissions typically
occur. [Id. at 4-9.] Accordingly, as BLM concedes, this project standing alone will increase
regional ozone levels. [Id. at 4-12.]
Despite these shortcomings, on June 18, 2012, BLM approved the drilling of as many as 1,298
new gas wells on BLM, state, and private land in the Uinta Basin as part of the Gasco Energy
Uinta Basin Natural Gas Development Project.75 The project will increase NOx emissions in the
area by 1,931 tons per year and VOC emissions by 2,574 tons per year, making the existing
ozone pollution worse. Assuming mitigation measures are fully implemented, BLM predicts an
increase of 0.4 ppb of ozone as a result of the project.76 In December 2013, BLM issued a draft
environmental impact statement (DEIS) for yet another project – the Monument Butte Project –
located on federal, state, and private land within the Uinta Basin.77 Newfield Exploration
Company has proposed to drill 5,750 wells over 16 years. The project will further increase ozone
precursor emissions in the project area.78
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Oil and gas development
in the Uinta Basin is having detrimental impacts to Dinosaur National Monument. The
monument’s cultural treasures now rest in a region plagued by some of the dirtiest air in the
country. The increasing emissions as a result of oil and gas development have a variety of
detrimental impacts on the air quality at Dinosaur NM, including ozone pollution, visibility
impairment and nitrogen deposition. Emissions from Utah, including those from oil and gas
development, cause or contribute to visibility impairment in at least 8 Class I areas in close
proximity to the Uinta Basin, including Capitol Reef, Canyonlands, Arches and Black Canyon of
the Gunnison national parks. Dinosaur is among the parks most impacted by nearby existing and
increasing oil and gas development in the Uinta Basin; modeled impacts from a recent analysis
of oil and gas development in the nearby White River Field Office Resource Management Area
“would ‘cause visibility impairment’ at Dinosaur NM” and the same is almost certainly true of
the existing – and increasing – emissions from oil and gas development on Indian country land.79
Pursuant to the Clean Air Act’s regional haze program, Utah – and any other state where human-
induced pollution contributes to visibility impairments at Class I areas – must analyze what
controls are needed to restore natural visibility conditions by the year 2064. [40 CFR §
51.308(d)(1)(i)(B).] The state may only reject those controls if it affirmatively demonstrates they
are unreasonable based on “the costs of compliance, the time necessary for compliance, the
energy and non-air quality environmental impacts of compliance, and the remaining useful life of
any potentially affected sources….” [Id. § 51.308(d)(1)(i)(A); see also id. § 51.308(d)(1)(ii)
(establishing demonstration requirement).] Yet no such controls have been imposed on the oil
75 BLM, Record of Decision for the Gasco Energy Project, at 3 (Jun. 2012), available at
http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html. 76 Gasco Final EIS, Chapter 4, at 4-440 to 441. 77 BLM, Monument Butte Oil and Gas Development Project DEIS, ES-5, available at
http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html. 78 See id. App. G (Air Quality Technical Support Document). 79 January 25, 2013 Memorandum from the National Park Service Regional Director, Intermountain Region to the
Planning and Environmental Coordinator, Bureau of Land Management, re National Park Service comments on
DES-12/0027, White River Field Office Oil and Gas Development, Draft Environmental Impact Statement,
Resource Management Plan, Amendment.
60
and gas sources in the Uinta Basin that contribute to visibility impairment at Dinosaur and the
other impaired Class I areas.
In addition to contributing to visibility impairment, emissions from oil and gas influence the
park’s ability to meet ambient air quality standards. Monitors at Dinosaur routinely document
high-pollution days in the park and surrounding region. Although EPA designated the area
“unclassifiable” for federal ozone standards, as discussed above, recent measurements do not
paint a healthy picture for the region’s air quality.
Monitors in Dinosaur National Monument show that the park is heavily impacted by oil and gas
development. The graph below shows the maximum daily 8-hour ozone average at two
collocated monitors in Dinosaur National Monument. During the 2012-2013 winter, Dinosaur
experienced significantly elevated ozone levels — with a maximum daily 8-hour peak of 136
ppb and exceedances on 26 days. While these wintertime exceedances have not occurred every
year, the 2012-2013 winter ozone levels by no means represent a rare occurrence. Exceedances
are also clearly marked during the winter of 2010-2011, the summer of 2012, and the winter of
2013-2014.80 These include an 8-hour daily maximum ozone spike measuring at 125 ppb
documented in January 2013 — nearly two times higher than NAAQS standards.81 Again on
Dec. 19, 2013, Dinosaur National Monument reached a peak ozone concentration of over 100
ppb for over five hours — well above EPA’s threshold of 75 ppb.82
[See pg. 11 of DCN EPA-HQ-OAR-2011-0151-0109-A1 for Chart, “Maximum Daily 8 Hour
Ozone at Dinosaur National Monument.]
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): In addition to elevated
ozone levels, the damaging effects of nitrogen deposition—another byproduct of energy
development emissions—have been documented in Dinosaur National Monument, as well as at
Arches and Canyonlands National Parks. The National Park Service noted these concerns,
among others related to air quality impacts, to the Bureau of Land Management when
commenting on proposed permitting of oil and gas wells in the nearby White River Field Office
Resource Management Area, just south of the monument and east of the Uinta Basin:
There is an existing body of evidence, including evidence from ecosystems similar to
those at Dinosaur NM and Arches National Park, which suggest that nitrogen deposition
is a significant concern in these parks. A risk assessment evaluating the sensitivity of
NPS areas to nutrient enrichment effects from nitrogen deposition ranked ecosystems in
Dinosaur NM and Arches and Canyonlands NPs as highly sensitive to nitrogen
80 Data downloaded from the National Park Service Access to Gaseous Pollutant and Meteorological Data Export
site, operated by Air Resource Specialists, available at http://ard-request.air-resource.com/data.aspx#. 81 National Park Service, Dinosaur National Monument Data Timelines, available at
http://www.nature.nps.gov/air/data/current/data_DIPT_timelines.cfm (last visited July 18, 2013). 82 Nicholas Dummer, “Dinosaur National Monument Ground Level Ozone at High-Risk Levels due to Proximity to
Drilling Operations,” My Town Colorado, available at http://www.mytowncolorado.com/forum/topics/
dinosaurnational-monument-ground-level-ozone-at-high-risk-levels (last visited March 26, 2014).
61
impacts…NPS concluded that the current cumulative nitrogen deposition impacts are a
substantial concern in Dinosaur NM.83
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Oil and Gas
development in the San Juan Basin in the Four Corners region along with several coal-fired
power plants in the region are contributing to unhealthy ozone levels. This area is home to large
areas of Indian country. As EPA recognizes, WRAP inventories have identified oil and natural
gas production sources as the source of the majority of the emissions of NOx and a large portion
of the VOC emissions in the Northern San Juan Basin. [79 FR 32508.] Recent Colorado
inventories show that oil and gas sources are responsible for approximately 85% of the
anthropogenic VOC emissions and 56% of the NOx emissions in Montezuma County.
[Attachment 1] In La Plata County, Colorado estimates that oil and gas sources are responsible
for 25% of VOC emissions and 70% of NOx emissions. [Id.] Five monitors in the Four Corners
region have design values above 0.065 ppm for the period from 2010 through 2012.84 These
three-year “design values” represent the three-year average of the fourth highest maximum ozone
concentration—not the highest level recorded in the region. There are days where 8-hour ozone
concentrations are substantially higher than 0.075 ppm. For example, according to EPA
monitoring data, in 2011 three monitors in La Plata County measured 8-hour ozone
concentrations of 0.086, 0.090, and 0.088 ppm, respectively.85 The New Mexico Department of
Public health has documented increased emergency room visits associated with high ozone levels
in San Juan County.86
Although the Four Corners region is not designated nonattainment for ozone, it still suffers from
elevated ozone levels that are harmful to public health. The NAAQS level is 0.075 ppm, but EPA
has long recognized that severe adverse health effects occur at levels below this standard,
especially for children and adults with asthma.87 The Clean Air Scientific Advisory Committee
(CASAC), the independent scientific group that provides technical advice to EPA with respect to
NAAQS, unanimously found that the current 0.075 ppm standard “fails to satisfy the explicit
stipulations of the Clean Air Act [to] ensure an adequate margin of safety for all individuals,
including sensitive populations” and has recommended an ozone standard somewhere between
0.060 and 0.070 ppm. [75 FR 2992.] Though EPA ultimately refused to promulgate a standard
between the levels recommended by CASAC, the public is at risk for serious health effects due
to current ozone levels in the Four Corners region.
83 January 25, 2013 Memorandum from the National Park Service Regional Director, Intermountain Region to the
Planning and Environmental Coordinator, Bureau of Land Management, re National Park Service comments on
DES-12/0027, White River Field Office Oil and Gas Development, Draft Environmental Impact Statement,
Resource Management Plan, Amendment. 84 See AQCC, Review of the 2103 Ozone Season, Oct. 17, 2013 Commission Meeting, slides at 5, 11, available at
https://www.colorado.gov/pacific/sites/default/files/ T1_AQCC_Ozone-Combined-22-pages.pdf; see also The
Southern Ute Indian Tribe, 2012 Air Monitoring Update, slides at 6, available at
https://www.southernutensn.gov/wpcontent/uploads/2013/05/Air_Monitoring_update_for_Env_Commission_Mgt_0
1082013_rev_011513.pdf. 85 Monitor Values Report, La Plata County (2011), generated using EPA monitoring data available at
http://www.epa.gov/airdata/. 86 Meyers et al., The Association Between Ambient Air Quality Ozone Levels and Medical Asthma. 87 See National Ambient Air Quality Standards for Ozone, 75 FR 2938, 2,944 (Jan. 19, 2010).
62
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Due to the scarcity of
monitoring within Indian country and the level of existing development and anticipated growth,
EPA should take immediate steps to increase air quality monitoring for criteria and other
pollutants, including HAPs, in Indian country.
As stated in the ANPR, EPA’s “understanding of the oil and natural gas sector’s impact on
ambient air quality in Indian country is incomplete at this time given the absence of ambient air
quality monitoring sites in many areas of Indian country.” [79 FR 32519.] For example, EPA
regulations governing state monitoring networks only require ozone monitoring in very
populated areas in the summertime. [40 CFR § 58.2(a)(5), App. D, Tables D-1 & D-2.] This
excludes large areas in and around Indian country, as well as areas suffering from wintertime
ozone. Site-specific monitoring is critical because emissions vary based on geologic formation
and operator practice. Monitoring also helps to improve air quality modeling used to demonstrate
the impact of emissions.
To remedy this problem, EPA should immediately install monitors in oil and gas hotspots.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): EPA should also use its
substantial authority under CAA section 114 and other provisions to require oil and natural gas
sources to install and operate ambient air quality monitors for ozone and other pollutants. We
incorporate by reference a petition submitted on December 19, 2012 by a broad coalition of
environmental, conservation and children’s health groups explaining EPA’s section 114
authority and seeking source monitoring for ozone (hereinafter “Ozone Monitoring Petition”).88
There are cost effective air quality monitors that can easily be employed at oil and gas sites. For
example, EPA has certified inexpensive, portable ozone monitors as a federal equivalent
method.89
Indeed, source monitoring was important in recognizing the severe ozone problem in the Uinta
Basin. Through a series of consent decrees that resulted from EPA enforcement actions against
oil and gas companies operating in the Uinta Basin, EPA required private companies to install
and operate ambient air quality monitors in the Basin to monitor ozone, NOx and PM2.5
concentrations. The two monitors, known as the Redwash and Ouray monitors, are located on
tribal lands and have been monitoring ambient air quality since 2009.90
88 In Re Petition for the U.S. Environmental Protection Agency to 1) Promptly Require Oil and Gas Owners and
Operators to Monitor for Ozone and 2) To Issue Control Techniques Guidelines for Oil and Natural Gas Operations
in Nonattainment Areas (Dec. 19, 2012), available at
http://www.edf.org/sites/default/files/Ozone_Monitoring_and_Oil_and_Natural_Gas-Petition.pdf. 89 Ozone Monitoring Petition at 24. 90 See U.S. v. Kerr-McGee Corp., No. 07-CV-01034-EWN-KMT, 2008 WL 863975, at *2 (D. Colo. Mar. 26, 2008);
see also United States v. Kerr-McGee Corp., Case 1:07-cv-01034-EWN-KMT, 80–82 (D. Colo. May 17, 2007)
(“KM Decree”); United States v. Colo. Interstate Gas Co., Case 2:09-cv-00649-TS, 11–14 (D. Utah, July 23, 2009)
(“CIG Decree”); United States v. Miller, Dyer & Co., LLC, Case 2:09-cv-00332-DAK, 42 (D. Utah, Sept. 23, 2009)
(“MD Decree”). There monitors were the first to record the significantly elevated wintertime ozone levels in the
Uinta Basin.
63
Furthermore, EPA should consider revisions to its monitoring network regulations to ensure
adequate monitoring in oil and gas development areas, including Indian country. EPA proposed
revisions in 2009, in part, in response to its recognition of wintertime ozone problems in rural
areas of Wyoming and Utah. But it never finalized any changes.91 These revisions are long
overdue.
Environmental Commenters recognize the cost of installing and maintaining air monitors and
suggest EPA consider passing monitoring costs on to permittees. This could be achieved as a
permit holders’ fee, which in the case of existing sources could be applied retroactively.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): While we take issue
with the lack of an adequate air quality monitoring network to assess the breadth and depth of
emissions related to oil and gas development, we note that sufficient information exists through
the existing monitoring network to justify and support a FIP structure to address new and
existing sources. The rapid expansion of the industry into new areas that are unsupported by a
monitoring network, coupled with the documented, extensive impacts, warrant better data on air
quality in these areas.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Any proposed rule to address
pollution from oil and gas operations on tribal lands should ensure rigorous air quality
monitoring on tribal lands. Installation of air quality monitors would help address the lack of
reliable information regarding air quality on tribal lands, which EPA identifies as a key problem
in the ANPR [79 FR 32509], and monitoring is important for protecting public welfare.
The Clean Air Act authorizes EPA to act to ensure that air quality monitors are installed on tribal
lands. Under Section 114 of the Clean Air Act, EPA has manifest authority to require owners and
operators of oil and gas facilities to install and operate air quality monitors, arising from EPA’s
responsibilities under the Act to protect air quality, public health, and welfare. Under that
provision, the Administrator can require regulated sources to provide information “[f]or the
purpose (i) of developing or assisting in the development of any implementation plan under
section 7410 [such as the plan contemplated in the ANPR] . . . [or] (ii) determining whether any
person is in violation of . . . any requirement of such a plan.” [42 U.S.C. § 7414(a)(1).] To this
end, Section 114 authorizes the Administrator to “require any person who owns or operates any
emission source” to “install, use, and maintain such monitoring equipment, and use such audit
procedures or methods; sample such emissions; . . . and provide such other information, as [s]he
may reasonably require.” [Id. § 7414(a)(1)(C)-(G)] EPA has exercised this authority broadly,92
and courts have recognized EPA’s authority to require sources to monitor a wide range of
pollutants and to enforce nearly every provision of the Clean Air Act. This broad, protective
authority clearly applies to facilities in the oil and natural gas production sector,93 and EPA has
91 78 FR 34178, 34,203 (June 6, 2013) (stating that the schedule for finalizing any changes (“remains unclear at this
time”). 92 Mandatory Reporting of Greenhouse Gases; Proposed Rule, 74 FR 16448, 16,454 (Apr. 10, 2009). 93 Along with other harmful pollutants, oil and gas sources emit significant amounts of ozone precursors, including
VOCs and methane, and therefore clearly fall within Section 114’s expansive focus on “any emission source.” 42
U.S.C. § 7414(a)(1); see Massachusetts v. EPA, 549 U.S. 497, 529 n.25 (2007) (observing that “‘any’ . . . has an
expansive meaning, that is, one or some indiscriminately of whatever kind”) (citing Department of Housing and
Urban Development v. Rucker, 535 U.S. 125, 131 (2002)).
64
recently used Section 114 to require these sources to monitor and report their methane emissions.
[See 40 CFR § 98.230; see also 75 FR 74458 (Nov. 30, 2010).]
Further, strengthening monitoring networks on tribal lands is consistent with EPA’s
responsibility to ensure adequate monitoring networks in any Section 110 Federal
Implementation Plan. Congress clearly intended that implementation plans include air quality
monitoring when it set out the minimum requirements for SIPs that are enumerated in section
110. Section 110(a)(2)(B) provides that “each such plan shall . . . provide for establishment and
operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon request, make such data available
to the Administrator.” [42 U.S.C. §7410(a)(2)(B)(i) (emphasis added).] Thus, any FIP
promulgated by EPA to regulate emissions from oil and gas sources on tribal lands should
include provisions for installing and maintaining sufficient air quality monitors to ensure that air
quality is being protected.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): A rigorous FIP should also
be coupled with a program to increase air quality monitoring on tribal lands. The National Tribal
Air Association’s recently released Status of Tribal Air Report stated that “an increase in
representative analyses (data obtained from air monitors) combined with health-based studies is
necessary so that all Tribes know the condition of the air quality of their air sheds and its impact
upon Tribal health.”94 In the ANPR, EPA further recognized the uncertainty surrounding the
impacts of gas and oil operations on tribal lands, “due in part to the scarcity of ambient air
monitoring in some areas of Indian country,” and “incomplete emissions information.”95
The vast majority of Indian lands are located in areas labelled by the EPA as
“Unclassifiable/Attainment,” and which lack 2010–2012 NAAQS design values.96 This lack of
data highlights the difficulties of ensuring adequate protections for tribal communities.
According to EPA, “there are uncertainties about the extent of environmental impacts from oil
and natural gas production. Given the environmental impacts from oil and natural gas production
in various states . . . air quality in Indian country may likewise be at risk of reaching unhealthy
levels.” [Id. at 32511.] The map provided by EPA in the docket for this rulemaking highlights
the lack of adequate air quality information on tribal lands. Accordingly, EDF respectfully urges
EPA to take immediate and comprehensive action to remedy the lack of accurate information on
the air quality of Indian lands.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #15: One commenter (0044) stated that the EPA has provided no assurance that the
regulations included in the FIP will adequately address air quality problems in Indian country
94 Nat’l Tribal Air Ass’n, Status of Tribal Air Report (2014), available at http://www.wrapair2.org/
calendar/attachments/1301/2097/NTAA-2014StatusTribalAirReport.pdf. 95 ANPR, 79 FR 32508. 96 Id. at 32510–11 (Table 1).
65
and ensure compliance with all applicable standards, including the NAAQS, Prevention of
Significant Deterioration (PSD) Program, and the visibility protection program. The commenter
noted that, although the EPA proposes a FIP to streamline the permitting process, the proposed
FIP does not achieve the goals of the case-by-case permitting the EPA established in the Federal
Indian Country Minor NSR rule—namely adequate protection of public health and the
environment. The proposed FIP would allow minor oil and natural gas sources to forego pre-
construction review and permitting altogether and instead simply self-certify that they will
comply with the six regulations that already apply within Indian country. The EPA has provided
no analysis of whether these six regulations will adequately address the air quality problems in
Indian country or ensure compliance with the NAAQS, PSD Program, and the visibility
protection program.
Response #15: The EPA believes that the eight regulations included in the final rule represent a
robust set of control measures that are adequate to protect air quality in Indian country in
attainment, attainment/unclassifiable and unclassifiable areas. The EPA can require source-
specific permits where needed to further protect air quality in these areas.
In addition, the Federal Indian Country Minor NSR rule does not require an air quality analysis
in all instances for minor source permits even in the context of a source-specific permit. While
§49.154(c)(1)(i) indicates that we will consider “[l]ocal air quality” in determining whether to
issue a source-specific permit, it does not require an air quality analysis and in fact §49.154(d)
establishes specific circumstances in which the Reviewing Authority can require the
owner/operator to conduct an air quality impacts analysis (AQIA). Air quality factors are just
one consideration with a source-specific permit. We have not made any changes as a result of
this comment.
Comment #16: One commenter (0044) stated that the EPA did not conduct any control
technology review, air quality impacts analysis, or dispersion modeling for the proposed FIP.
Response #16: The EPA’s analysis and review consisted of establishing a set of requirements
that we believe are sufficient to protect the NAAQS and PSD increments in attainment,
attainment/unclassifiable and unclassifiable areas with the caveat that the EPA can require
source-specific permits where needed to further protect air quality in a given area. Moreover, all
eight regulations included in this FIP are based on the EPA’s analyses of available control
technologies. The FIP requires compliance with the most current version of these regulations. So,
the control requirements in this FIP will stay up to date, as these rules are based on the most
current technologies. Finally, as noted above, the Federal Indian Country Minor NSR rule does
not require an air quality analysis in all instances when a permit is issued even with a source-
specific permit. No changes were made as a result of this comment.
Comment #17: One commenter (0044) expressed concern about the lack of any requirements in
the proposed FIP for air quality monitoring and modeling, and recommended that the proposed
FIP include requirements to improve air quality monitoring and modeling within Indian country.
This commenter noted that the air quality in many areas of Indian country with oil and natural
gas development exceeds federal public health standards for ozone and particulates. The
commenter expressed concern that, without adequate monitoring, the EPA cannot ensure that it
66
is protecting public health from the emissions associated with oil and natural gas development.
This commenter stated that the most efficient and expedient method of providing such a
monitoring network is requiring operators to install and operate monitors. The commenter noted
that the EPA has authority under CAA section 114 to require operators to install and operate
ambient air quality monitors.
Response #17: With respect to monitoring, the EPA works closely with tribes, as well as state
and local partners to implement and maintain a national ambient air monitoring program. In
many cases, ambient networks include more monitors than are required by minimum
requirements in the EPA’s monitoring regulations. The EPA Regional Administrators have the
authority to require additional monitoring in a variety of situations; such authority is specifically
noted throughout the language in Appendix D to 40 CFR part 58, Network Design Criteria for
Ambient Air Quality Monitoring. Accordingly, the EPA believes that the current authority to
require monitoring above minimum requirements is sufficient to support this final rule and the
need to employ additional air quality monitoring in areas of Indian country where the air quality
may not be fully characterized. As the commenter points out, the EPA has the authority under
section 114 of the CAA to require air quality monitoring if it determines that this is necessary in
a particular areas. For these reasons, we do not believe that including monitoring requirements in
this rule is necessary. Additionally, the EPA is exploring alternative sensor technology that can
be used to compliment traditional compliance-based monitoring based on Federal Reference
Method or Federal Equivalent Method monitoring equipment. The EPA anticipates that
alternative sensor technology may be used in the future as a screening tool to determine, if longer
term monitoring with more specialized equipment is needed.
Regarding modeling, as noted above, the Federal Indian Country Minor NSR rule does not
require an air quality analysis (and the modeling that would accompany it) in all instances when
a permit is issued even with a source-specific permit. With respect to the final FIP, we do not
believe that modeling is necessary; rather, we believe that the suite of eight federal regulations
that constitute the FIP’s set of control requirements are sufficent to protect air quality in areas of
Indian country designated attainment, attainment/unclassifiable and unclassifiable. We have not
made any changes in response to this comment.
With respect to air quality in areas of Indian country with oil and natural gas development,
currently we are not seeing widespread air quality problems. Based on air quality data for 2012-
2014,97 (outside of Oklahoma) there are only two counties that meet three criteria: have Indian
country present; have design values (DVs) above the level of the current ozone NAAQS (70
parts per billion (ppb)); and have oil and natural gas activity. The two counties that meet these
three criteria are in Utah and are: Duchesne and Uintah Counties.98 The majority of the land area
in both of these counties is on the Uintah and Ouray Reservation. For the Uintah and Ouray
Reservation, we have sufficient concerns about the air quality impacts from existing sources that
we plan to propose a separate reservation-specific FIP.
97 The EPA will not designate areas as nonattainment based on these data, but likely based on 2014 - 2016 data. 98 Supporting information can be found in: Docket ID No. EPA-HQ-OAR-2014-0606.
67
For areas designated nonattainment for NAAQS (2008 ozone NAAQS, 2006 and 2012 PM2.5
NAAQS), based on air quality DVs for 2012-2014, there are not any areas that meet three
criteria: have Indian country present; have DVs above the level of the NAAQS; and have oil and
natural gas activity.99
Comment #18: One commenter (0044) expressed concern about the lack of enforcement
requirements in the FIP. The commenter noted that the proposed FIP provides few, if any,
enforcement tools, and requested that the EPA clarify, add, and expand enforcement
requirements in the final rule. The commenter encouraged the EPA to implement Next
Generation Compliance techniques (such as self-certification and photographic verification, per
40 CFR part 60, subpart OOOO) in the final rule, and recommended that the EPA should also
robustly pursue standard enforcement procedures in Indian country.
Response #18: Since the EPA is relying on the monitoring, recordkeeping and reporting
requirements in the nine rules underlying this final FIP to be comprehensive in ensuring
compliance, we do not feel that additional, separate compliance measures are needed. The
requirements in the eight rules are independently enforceable under those rules as well as being
enforceable under the FIP. An owner/operator is responsible for correctly permitting its sources.
If it is later determined that the source is not complying with the emission limitations and
standards prescibed in the eight rules as required by the FIP, the EPA can take enforcement
action to bring a source into compliance. The EPA can also enforce major source requirements in
situations where it is determined that a source emitted or has the potential to emit pollutants in
major source amounts. We have not made any changes as a result of this comment.
4.0 Comments Related to the FIP as an Alternative to Site-Specific Permits, General
Permits, and Permits-by-Rule
Southern Ute (0031): The Tribe maintains that the best permitting approach for Indian Country
is a general permit or permit by rule developed through ambient impact modeling to ensure
protection of the NAAQS, while still providing legally and practically enforceable emission
limitations, enabling sources to receive credit for emission reduction efforts.
National Tribal Air Association (0032): The Proposed Rule’s use of a FIP to regulate true minor
sources engaged in oil and natural gas production fails to provide Indian Tribes or any of their
members with an opportunity to provide comments to EPA about a facility’s coverage under the
FIP, unlike the comment process available under a general permit. EPA acknowledges this, but
indicates that the FIP contains requirements for emissions controls, compliance monitoring, and
reporting that would help prevent a facility from causing or contributing to national ambient air
quality standard (NAAQS) or prevention of significant deterioration (PSD) increment violation.
Further, EPA indicates that any citizen can enforce the provisions of a FIP by commencing a
civil action in the district court in the judicial district in which the source is located. However, a
Tribe or individual might have other concerns about a facility, beyond NAAQS or PSD
increment violations, about which they might want to provide comments, and a civil action is
intended to address a FIP violation, not issues that might cause concern to a Tribe or its members
prior to a facility being covered by a FIP. The NTAA recommends that EPA provide a clear
99 Ibid.
68
means by which Indian Tribes, their members, or any member of the public can provide
comments to EPA about a facility’s coverage under the FIP.
National Tribal Air Association (0032): Need to Support Tribal Implementation Plans - Title 40
CFR § 49.11(a) provides that EPA shall promulgate FIP provisions as are “necessary or
appropriate to protect air quality.” The NTAA finds that there is a need to protect air quality in
Indian Country that is jeopardized currently by the growing number of true minor sources
classified as oil and natural gas facilities. The Proposed Rule offers full regulatory coverage of
such facilities in Indian Country by its requirements involving emissions limitations and
standards, monitoring, and testing and recordkeeping and reporting. However, EPA must provide
Indian Tribes with the requisite resources to develop and implement tribal implementation plans
(TIPs) to assume regulatory control over the true minor sources located within their jurisdictions
that are engaged in oil and natural gas production.
The Proposed Rule’s FIP “one size fits all” approach fails to account for the different conditions
of the Tribal lands on which true minor sources engaged in oil and natural gas production will be
located. Tribal lands can be located geographically along coastal areas, in arid and wet regions,
on plains, among mountainous areas, and within valleys. The meteorological conditions for such
lands vary as well such as differing wind directions and speeds, and the susceptibility to air
inversions. Further, the oil and natural gas reserves located under Tribal lands can influence the
number and type of oil and natural gas facilities that locate on such lands. Ultimately, Indian
Tribes are the best governmental entities to regulate true minor sources within their jurisdictions
that are engaged in oil and natural gas production and to effectuate the best possible air quality
for their members and natural environment.
The NTAA recommends that EPA provide Indian Tribes with an affirmative commitment under
the Proposed Rule that it will provide such Tribes with the resources necessary to develop and
implement TIPs for regulating true minor sources engaged in oil and natural gas production, and
to also provide similar resources for the future regulation of true existing minor sources engaged
with such production.
QEP Resources, Inc. (0038): QEP commends EPA on a number of aspects of the Agency's
proposal. While we continue to believe a Permit by Rule would have been the cleanest path
forward for regulatory certainty, we agree with EPA's stated sentiment that "[t]he FIP would
reduce burden for sources and the Reviewing Authority and prevent delays in new construction
due to the minor NSR permitting obligation." [80 Federal Register 56557 (Sept. 18, 2015).]
QEP Resources, Inc. (0038): QEP is concerned with EPA's proposal to require minor site-
specific permits on a case-by-case basis, in lieu of the streamlined registration process provided
in the National FIP. The proposal grants EPA with overly broad and unrestricted discretion to
require site-specific permits. Proposed 40 CFR § 49.101(b)(3) provides that EPA may require
owners and operators of oil and natural gas production facilities to obtain a site-specific permit
"to ensure protection of the NAAQS." [80 FR 56564, 56573 (Sept. 18, 2015).] EPA further
expands on its discretion in the preamble stating, "the Reviewing Authority may determine that
the source is not sufficiently controlled under the proposed FIP to protect the NAAQS in the area
of the proposed project (e.g., if the measured design value for the area is close to or above the
69
level of the NAAQS). In that circumstance, the Reviewing Authority can require the minor
source to obtain a site-specific permit." [80 FR 56564.] The authority laid out in this proposal to
require site-specific permitting is too broad.
We question EPA's authority to impose site-specific permitting requirements in areas that have
not yet been officially designated out of attainment of the NAAQSs for any criteria pollutant
standards.
Further, in light of the recently lowered NAAQS for ozone of 70 ppb, a substantial number of
areas in Indian country may now be deemed "close to" the standard, triggering EPA's discretion
to require site specific permits. Site-specific permitting in areas "close to" the standard will
disadvantage development in Indian country as it relates to development in state airsheds. While
Indian country development will be stifled by site-specific permitting timelines, development in
the state airshed will be supported through existing, state-created general permitting schemes for
minor sources. For example, areas of Indian country in the Uinta Basin of Utah that are close to
or above the 2015 ozone NAAQS, where QEP has significant operations, may be vulnerable to
significant delays from site-specific permitting while development in neighboring state lands in
the Basin will be supported through existing state programs.
Note that states have set parameters around the state discretion to impose source-specific
obligations, including air quality impact analyses, for minor sources. For example, Arizona limits
discretion as follows:
The Director shall make such a request [for an air quality impact assessment], if there is
reason to believe that a source or minor NSR modification could interfere with attainment
or maintenance of a standard. In making that determination, the Director shall take into
consideration: 1. The source's emission rates. 2. The location of emission units within the
facility and their proximity to the ambient air. 3. The terrain in which the source is or will
be located. 4. The source type. 5. The location and emissions of nearby sources. 6.
Background concentrations of regulated minor NSR pollutants.100
EPA has proposed no limits on EPA discretion nor described any objective parameters or the
factual basis for exercising such discretion.
EPA's proposal preamble further provides, "[t]he agency recommends at the time of registration,
the owner/operator of all new sources or all sources scheduled for modification contact the
Reviewing Authority for a review of the air quality status of that area, and the possibility of a
requirement for a site specific permit." [80 FR 56564.] Such a recommended practice slows
down the permitting process, creates uncertainty for the regulated community, calls on additional
agency resources, and runs counter to the principles of a streamlined registration process.
QEP implores EPA to honor one of the core benefits of the National FIP - a streamlined
registration scheme for minor emission sources- and not eclipse such a benefit by declaring the
right to require site-specific permitting in a broad and unrestricted manner. Accordingly, we urge
EPA to remove the language cited above in the preamble and National FIP, granting the Agency
100 Arizona Administrative Code Title 18, Chapter 2, Section R18-2- 334(E)(1)-(6).
70
unlawful authority to require site-specific permitting simply to "ensure attainment of the
NAAQS," in areas where the measured design value is "close to" the relevant NAAQS and based
on a case-by-case "review of the air quality in that area.
Ute Indian Tribe (0039): The Ute Indian Tribe encourages EPA to use a FIP as an approach for
its Indian Country Minor New Source Review program. A FIP would streamline the permitting
approach, eliminate the need for unnecessary delays such as preconstruction approval, and apply
requirements directly to sources subject to the regulation. But it is important that the FIP not
apply the same standards to all of Indian Country, as the variations in state minor source
permitting rules and concerns of Indian tribes cannot be adequately represented or addressed in a
uniform national rule. Holding operators on the Reservation to standards EPA based off of
California, for example, would unnecessarily obstruct development on the Uintah and Ouray
Reservation. Therefore, EPA should develop reservation or region-specific FIPs that account for
issues and concerns particular to that location. Through a reservation-by-reservation approach,
EPA can protect tribal interests by regulating emissions in a fair yet effective manner.
Ute Indian Tribe (0039): The Tribe opposes any attempt to implement a nationwide FIP that
does not take into account the unique characteristics of the Uintah and Ouray Reservation. After
all, the goal is to develop a rule that would achieve somewhat equal standards between tribal
land and federal, state, fee lands. The disparity in state regulation makes a nationwide FIP
impractical to level the playing field between tribes located in different regions. A regional or
reservation-specific FIP, however, could level the playing field by accounting for particular air
quality concerns and permitting requirements of surrounding jurisdictions.
Consistency is a good thing. But an overly burdensome national FIP would lack both the
flexibility and streamlining that is apparent in many state permitting programs. The national
applicability of the Tribal Minor NSR Review Program would not reflect the many variations in
state minor source permitting. EPA recognized in the Fort Berthold FIP the importance of
maintaining consistency with state minor source programs.101 Attempting to apply a "one-size-
fits-all" approach at a national level would certainly be at odds with state programs that are
mature, and that may more readily accommodate unique air quality concerns and producing
basin characteristics. Just as EPA addressed the unique issues that arose for sources operating in
the Bakken formation, EPA's Indian Country Minor New Source Review program must be based
on a reservation or region-specific basis.
Ute Indian Tribe (0039): A uniform nationwide Indian Country Minor New Source Review
Program that applies both to new and existing sources would further slow review and approval of
oil and gas permits, impact the Tribe's ability to expand operations, and decrease the revenue the
Tribe is able to earn from tribal lands. Despite the progress the Tribe has made, the ability to
benefit from its resources is limited by multiple federal agencies overseeing oil and gas
development on the Reservation. Delays in the federal oil and gas permit approval process are
causing energy companies to limit their activities on the Reservation. Companies operating on
101 FR 48878, 48881 ("Finally, this rule is important in that while not identical to, the rule is consistent with the
regulations approved into North Dakota's SIP ... this rule ensures that consistent requirements apply to activities
both inside of and within the" Fort Berthold Indian Reservation).
71
the Reservation will only commit as many resources as can be supported by the pace of permit
approvals.
The oil and gas companies operating on the Reservation often tell the Tribe that the federal oil
and gas permitting process is the single biggest risk factor to their operations. If the risks become
so great, drilling rigs will leave the Reservation for private or state lands. This would be even
worse than companies limiting their operations because drilling rigs that leave the Reservation
usually do not come back. The Tribe is concerned that if EPA used an approach that applied the
same standards nationwide, rather than regulations designed specifically for the Uintah and
Ouray Reservation, companies would limit their operations or leave the Reservation.
This would lead to job cuts and significantly diminish revenue used to fund our tribal
government and provide services to tribal members.
Ute Indian Tribe (0039): The EPA should not use a general permit because such an approach
would cause unnecessary delays such as pre-construction review. This would create a significant
administrative burden for EPA regional offices and has the potential to create new permitting
backlogs, slowing production, delaying jobs, and diminishing tribal revenue. It undermines the
Tribe's goal to streamline this process and introduces a new element of uncertainty into company
drilling schedules. The limited staffing resources available at the Division of Air Quality would
create additional permitting delays, with commensurate financial risk for companies
contemplating investment on the Reservation. A general permit will create other delays by
enabling the public to challenge a particular source receiving coverage at the administrative
level. Enabling public participation at this level would allow individuals who live hundreds or
thousands of miles away, and without any affiliation to the Tribe, to prevent the Tribe from
realizing the benefits of its trust resources. For these reasons, the Tribe opposes a general permit
as a means to address existing sources in Indian Country.
Ute Indian Tribe (0039): The Tribe prefers a FIP over a permit-by-rule because the FIP can also
regulate certain classes of existing minor sources.
The Tribe opposes a final rule that utilizes a permit-by-rule approach. Such an approach would
be limited to addressing emissions from new and modified sources. A permit-by-rule provides
many advantages over a general permit. For example, a permit-by-rule produces a standard set of
requirements that may apply to multiple sources with similar emissions and other characteristics.
This streamlined approach enables operators to notify the EPA that an individual source meets
all eligibility criteria for coverage. Other benefits are that preconstruction approval is not
required and the public may only object to a particular source receiving permit coverage though
judicial challenge. A permit-by-rule would be far less resource-intensive than general permits.
Nevertheless, the Tribe recommends that EPA consult with tribes to develop a reservation-
specific FIP, which is preferable to a permit-by-rule.
Gas Processors Association (GPA) (0040): At the same time, however, GPA respectfully
requests EPA make a number of enhancements to the program to make it more effective.
Specifically, EPA should:
• Eliminate the agency’s ability to require site-specific permits on a case-by-case basis
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• Develop a uniform process to address preconstruction permitting in areas where
design values exceed the NAAQS despite being designated attainment or
unclassified.
Gas Processors Association (GPA) (0040): GPA is also concerned that the effectiveness of the
streamlined FIP program may be diminished by the risk that, at any time prior to construction,
EPA could inform an operator that a site-specific permit is required. [See 80 FR 56564.] Under
the proposed FIP, a facility is only required to provide notice 30 days before construction. [Id. at
56576.] Operators incur significant, non-refundable expenses within the 30 days prior to
construction, as materials must be ordered and delivered and contractors must be retained to
perform the work. Thus, a last minute decision by EPA to require a site-specific permit would
impose a substantial burden on an operator. As a result, GPA opposes this provision and urges
EPA to eliminate any option to require a site-specific permit, particularly with so little notice.
Earthjustice et al. (0044): According to EPA, recent advances in unconventional oil and natural
gas production techniques have resulted in a “sizeable increase” in development throughout
Indian Country, including areas in North Dakota, Montana, South Dakota, Nebraska, Kansas,
Oklahoma, Michigan, Wisconsin, New York, Utah, New Mexico, Colorado, and Wyoming. [79
FR 32508.] The Energy Information Administration (“EIA”) reports that Indian Country
produced 241 billion cubic feet (bcf) of natural gas and 324 trillion Btu of crude oil in 2014
alone.102
Indeed, EPA Region 8—which covers Colorado, Utah, Wyoming, Montana, North Dakota, and
South Dakota and twenty-seven tribal nations—has already received more than 6,400
registrations from existing oil and gas minor sources in Indian Country. [79 FR 32509.] Sources
were required to register in response to EPA’s Tribal NSR Rule.103 According to EPA Region 8
staff, 5,216 of the registrations were from the Uintah and Ouray Reservation, 757 were from the
Ft. Berthold Indian Reservation, and 378 were from the Southern Ute Reservation.104, 105 Region
8 staff also reported that they received several registrations from the Blackfeet Reservation, Ute
Mountain Ute Reservation, Wind River Reservation, and Fort Peck Reservation. [Id.] There is
overall less oil and gas development in Indian Country within EPA Region 9, which covers
Arizona, California, Hawai’i, Nevada, the Pacific Islands, and 148 tribal nations. As of
November 2015, Region 9 reported having received about 155 registrations from oil and gas
sector sources on the Navajo Reservation alone.106, 107
102 EIA, Sales of Fossil Fuels Produced from Federal and Indian lands, FY 2003 through FY 2014 at 3 (July 2015),
www.eia.gov/analysis/requests/federallands/pdf/eia-federallandsales.pdf. 103 40 CFR § 49.151(c)(1)(iii); see also 76 FR 38748, 38772–73 (July 1, 2011)) (codified at 40 CFR §§ 49.151–65)
(establishing registration requirement); 79 FR 34231, 34234 (June 16, 2014) (extending registration period). 104 Email from Claudia Young Smith, Environmental Scientist, EPA Region 8, to Joel Minor, Associate Attorney,
Earthjustice (Nov. 25, 2015) (Appx. at 50). 105 Footnote 6: Region 8 staff informed us that approximately 95% of these registrations were from oil and gas
sector minor sources. 106 Email from Lisa Beckham, Environmental Engineer, EPA Region 9, to Joel Minor, Associate Attorney,
Earthjustice (Nov. 24, 2015) (Appx. at 52). 107 We assume that Region 9’s reference to the number of registrations received for the Navajo Nation is a reference
to facilities on tribal trust lands, not on allotted lands.
73
EPA’s registration data may underreport the number of existing sources, as some operators may
be unaware of registration requirements, unsure if their operations are required to register, or
unwilling to comply with registration requirements. Additionally, confusion over EPA’s
definition of Indian Country for the purposes of the Tribal NSR rule may have resulted in
existing sources on allotted lands and other jurisdictionally complex areas being unsure whether
they were required to register. Thus, although the thousands of registrations that EPA has already
received demonstrates that there are significant and largely unregulated emissions from existing
sources in Indian Country, registration data paints an incomplete picture of the magnitude of
emissions from existing sources in Indian Country.
In the ANPR, EPA provided additional information about the number of current and projected
emission sources on several reservations. EPA reported that the Ute Tribe of the Uintah and
Ouray Reservation in Utah had 7,000 wells. [79 FR 32509.] EPA also reported that the Ute Tribe
plans to open up an additional 150,000 acres to mineral development, and that the Bureau of
Land Management (“BLM”) has approved 5,000 new wells in the Uinta Basin, where the Uintah
and Ouray Reservation is located. [79 FR 32508–09.] In the San Juan Basin in the Four Corners
region, EPA reported that the Jicarilla Apache Nation has nearly 3,000 existing active and
plugged wells and nearly 2,000 miles of pipelines and roads. [79 FR 32509.] In North Dakota,
EPA estimated that 2,000 additional wells will be drilled on the Fort Berthold Indian Reservation
(“FBIR”). [79 FR 32508.] Therefore, there is substantial information before the agency
demonstrating the magnitude of existing and projected oil and gas development in Indian
Country.
Additionally, for the purposes of air quality, the number of facilities located in Indian country is
not the only important metric. In areas like the San Juan Basin, there is significant development
adjacent to tribal lands on a patchwork of state, federal, allotted, and privately-owned lands. Oil
and gas development occurring near Indian Country can have just as much impact on tribal air
quality as development that actually occurs within Indian Country. This reinforces the need for
strong regulations nationwide as well as strong regulations within Indian Country.
Earthjustice et al. (0044): In addition to exposing tribal members to dangerous levels of ozone,
oil and gas operations in Indian Country also expose tribal members to Hazardous Air Pollutants
(HAP). HAPs, also known as air toxics, are pollutants which “present . . . a threat of adverse
human health effects (including but not limited to, substances which are known to be, or may
reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause
reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental
effects.” [42 U.S.C. § 7412(b)(2).]
Several HAPs emitted by the oil and gas sector, including benzene, toluene, ethyl benzene, and
xylene (collectively, “BTEX”), are known or suspected carcinogens, to which there is no safe
74
level of exposure.108, 109 The oil and gas sector also emits several other HAPs, including acrolein,
methylene chloride, arsenic, polycyclic aromatic hydrocarbons, mercury, formaldehyde, and n-
hexane.110, 111
Some of these HAPs are persistent in the environment and bioaccumulate, building up in fish and
the soil, which can cause significant harms to environmental resources that tribes and tribal
members rely on for subsistence, cultural, recreational, aesthetic, and other values.112
A growing body of scientific literature has documented the human health risks from exposure to
oil and gas sector air toxics.113 Four studies in Colorado have identified adverse impacts of
exposure to oil and gas sector air toxics. One study found elevated cumulative cancer risks for
people living within 0.5 miles of wells of 10 per million people, as well as likely chronic non-
cancer health impacts.114 Another more comprehensive public health study found elevated cancer
rates of up to 100 cases per million people near wells in Garfield County, likely due to benzene
exposure, and identified oil and gas operations as the likely source of the benzene.115 A third
study found higher rates of congenital heart defects and neural tube defects among babies born to
108 EPA, Regulatory Impact Analysis: Final New Source Performance Standards and Amendments to the National
Emission Standards for Hazardous Air Pollutants for the Oil and Natural Gas Industry at 4-14 (Apr. 2012) (Appx. at
408); see also NRDC, Drilling Down: Protecting Western Communities From The Health And Environmental
Effects of Oil and Gas Production at v-vi (2007) (Appx. at 632). 109 EPA notes in the Proposed FIP that “[b]ecause the individual HAPs pollutants regulated from glycol dehydrators
by the NESHAP (and to some degree from process heaters, as well) for oil and gas production sources are also
VOC, which are regulated NSR pollutants, the proposed FIP would create enforceable VOC reduction requirements
for glycol dehydrators and process heaters.” 80 FR 56569. EPA is thus aware that oil and gas sector HAPs emissions
can also be regulated through programs designed to target other pollutants. 110 Petition to EPA from California Communities Against Toxics et al. for Listing and Rulemaking Under Section
112 of the Clean Air Act to Establish an Area Source Category for Oil and Gas Production Wells and Associated
Equipment and to Set National Emission Standards for Hazardous Air Pollutant Standards at 35–37 (May 13, 2014),
http://earthjustice.org/sites/default/files/files/OilGasToxicWellsPetition51314.pdf (“HAPs Rulemaking Petition”)
(Appx. at 638) (describing these HAPs and their adverse human health impacts). 111 Footnote 12: EPA regulates new and existing sources of air toxics by establishing Maximum Achievable Control
Technology (“MACT”) standards. 42 U.S.C. § 7412(d)(2), (d)(3). EPA regulates air toxics emissions from the oil
and gas sector through NESHAP rules. 40 CFR §§ 63.760–779 & Appx. This rule and the NESHAPs rule for
industrial boilers and process heaters are two of the six regulations that EPA proposes to apply in Indian Country
through the Proposed FIP. 80 FR 56557–58 (listing 40 CFR pt. 63 subparts HH & DDDDD). 112 See, e.g., Nat’l Park Serv., The Fate, Transport, and Ecological Impacts of Airborne Contaminants In Western
National Parks at 4-8 to 4-42, 5-1 to 5-21, 5-61 to 5-67 (2008),
http://www.nature.nps.gov/air/studies/air_toxics/docs/2008FinalReport/WACAP_Report_Volume_I_Main.pdf
(Appx. at 2324). 113 See Bernard D. Goldstein et al., The Role of Toxicological Science in Meeting the Challenges and Opportunities
of Hydraulic Fracturing, 139 TOXICOLOGICAL SCI. 271, 275–77 (2014) (Appx. at 750); Miriam Rotkin-Ellman,
NRDC, More Fracking Fumes: Studies Repeatedly Find Unsafe Levels of Air Pollution Near Fracking Sites (Dec.
16, 2014), http://switchboard.nrdc.org/blogs/mrotkinellman/more_fracking_fumes_studies_re.html; HAPs
Rulemaking Petition 37-43. 114 Lisa M. McKenzie et al., Human Health Risk Assessment of Air Emissions from Development of
Unconventional Natural Gas Resources, 424 SCI. TOTAL ENV’T 79, 80–83 (2012) (Appx. at 763). 115 Raj Goyal, Colo. Dep’t of Pub. Health & Env’t, Garfield County Air Toxics Inhalation; Screening Level Human
Health Risk Assessment 22–23, 29–30, 39–40, 56 (2010) (Appx. at 772).
75
mothers living within a ten mile radius and near higher densities of natural gas wells.116 Finally,
a study by NOAA scientists found emissions of benzene, a known carcinogen, at levels seven
times greater than reflected in a state inventory.117
Evidence from oil and gas producing basins that include portions of Indian Country has also
revealed concerning health impacts from exposure to air toxics. For example, a study conducted
in several oil and gas basins nationwide—including Fremont County, Wyoming, where part of
the Wind River Reservation is located—found benzene levels twenty-two times higher than
EPA’s 1/10,000 IRIS cancer risk level.118
Other evidence indicates that more studies on exposure to oil and gas emissions are warranted. A
Utah Department of Health study has concluded “the incidence of stillbirths in the [Uinta Basin]
area during the 2012-2013 time period was higher than historically observed for that region.”119
The study found that the Tri-County Uinta Basin area as a whole, in which there were 11,110
active oil and gas wells at the time of the study, had a statistically significant elevation above
baseline levels in: (1) low-birth-weight infants in 2005-07; (2) premature births in 2008-09; and
(3) small-for-gestational age infants in 2008-09.120 The study also found statistically significant
elevations in adverse birth outcomes in several of the three counties individually during various
time periods, most notably in the risk of infant death in Duchesne County in 2000-07.121 The
study cautioned that the methodology it used was not capable of linking the increased rate of
adverse birth outcomes to any specific risk factors, such as exposures to air pollutants.122
However, the study provides strong support for further research into potential links between
exposure to emissions from the over 11,000 active oil and gas wells in the Uinta Basin and the
observed adverse birth outcomes.
Earthjustice et al. (0044): Oil and gas sector emissions contribute not only to deteriorating air
quality in Indian Country, but also to climate change. In the ANPR, EPA acknowledged that
reducing methane from the oil and gas sector is a key part of the Obama Administration’s
President’s Climate Action Plan. [79 FR 32504-05.] According to the Intergovernmental Panel
on Climate change (IPCC), more than one-third of anthropogenic warming is due to short-lived
climate pollutants such as methane, which is 87 times more powerful a greenhouse gas than
116 Lisa M. McKenzie et al., Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in
Rural Colorado, 122 ENVTL. HEALTH PERSPS. 412, 412–16 (2014) (Appx. at 844); see also Miriam Rotkin-
Ellman, NRDC, New Study Finds Worrisome Pattern of Birth Defects in Fracking Communities (Feb. 4, 2014),
http://switchboard.nrdc.org/blogs/mrotkinellman/new_study_finds_worrisome_patt.html. 117 Gabrielle Pétron et al., A New Look at Methane and Non-methane Hydrocarbon Emissions from Oil and Natural
Gas Operations in the Colorado Denver-Julesburg Basin, 119 J. GEOPHYS. RES. ATMOS. 6836, 6836 (2013)
(Appx. at 856). 118 Gregg P. Macey et al., Air Concentrations of Volatile Compounds Near Oil and Gas Production: A Community-
based Exploratory Study, 13 ENVTL. HEALTH 82, 88 (2014) (Appx. at 873). 119 Sam Lefevre et al., Utah Dep’t of Health, Envtl. Epidemiology Prg., Adverse Birth Outcomes Statistical Review
Investigating Tricounty Health Department Study Area (Daggett, Duchesne and Uintah Counties), Utah, 1991-2013
at 22 (2015), http://health.utah.gov/enviroepi/appletree/TriCountyABO/TriCounty_ABO.pdf (Appx. at 891). 120 Id. at 6, 42–44. 121 Id. at 45. 122 Id. at 21.
76
carbon dioxide over a twenty-year period.123 EPA’s own Greenhouse Gas Inventory shows that
the oil and gas industry is the largest source of anthropogenic methane pollution in the United
States.124 To reach the Obama Administration’s goal of reducing greenhouse gas emissions 17%
by 2020, significant methane emissions reductions will be necessary, and the most obvious
source for reducing those emissions is the oil and gas sector, including sources in Indian
Country.125
Satellite imagery indicates that the San Juan Basin, despite being relatively sparsely populated
with rural and tribal communities, has the highest concentration of methane emissions in the
country, a phenomenon known as the “Four Corners Methane Hot Spot.”126, 127 According to a
recent NASA study, space-based observations between 2003 and 2009 reveal that emissions
unaccounted for in EPA’s methane emissions inventory from the Four Corners region account
for 10% of EPA’s estimated methane emissions nationwide, due to natural gas and coalbed
methane development.128 Over seventy-five researchers from NOAA, NASA, and partner
organizations have converged on the Four Corners region to study the hot spot.129 The results of
their research will provide more information about the contributions of individual sources to the
hot spot.
But even without further research, many indicators suggest that the source of the hotspot is the
booming oil and gas development in the region. As shown in Table 2, EPA’s Greenhouse Gas
Emissions Inventory shows that the oil and gas sector contributes a significant quantity of
methane emissions to the Four Corners region.130 Based on the Greenhouse Gas Emissions
Inventory data, EPA has already identified the San Juan Basin as one of the top five basins for
reported greenhouse gas emissions nationwide, and the largest source of greenhouse gas
emissions from pneumatic devices nationwide.131 123 EDF ANPR Comments at 2 (citing Climate Change 2013: The Physical Science Basis, Contribution of Working
Group 1 to The Fifth Assessment Report of The Intergovernmental Panel On Climate Change (Thomas F. Stocker et
al., eds. 2013)). 124 Coalition ANPR Comments at 3 (citing A.R. Brandt et al., Methane Leaks from North American Natural Gas
Systems, 343 SCIENCE 733 (2014), http://www.novim.org/images/pdf/ScienceMethane.02.14.14.pdf). 125 See White House, Climate Action Plan: A Strategy to Reduce Methane Emissions 1 (March 28, 2014),
https://www.whitehouse.gov/sites/default/files/strategy_to_reduce_methane_emissions_2014-03-28_final.pdf
(Appx. at 954). 126 Jonathan Thompson, Unlocking the Mysteries of the Four Corners Methane Hot Spot, HIGH COUNTRY NEWS
(Aug. 31, 2015), http://www.hcn.org/issues/47.15/in-the-southwests-four-corners-methane-has-a-dark-side;
Jonathan Thompson, NASA Finds Methane Hot Spot Over Four Corners, HIGH COUNTRY NEWS (Oct. 12,
2014), http://www.hcn.org/articles/nasa-finds-methane-hot-spot-over-four-corners. 127 As noted above, the San Juan Basin is home to the Navajo, Southern Ute, Ute Mountain Ute, and Jicarilla Apache
Reservations. See supra p. 8. 128 Eric A. Kort, et al., Four Corners: The Largest US Methane Anomaly Viewed from Space, 41 GEOPHYS. RES.
LETTERS 6898, 6898-6900, 6902 (2014) (Appx. at 969). 129 See Peter Marcus, What’s Causing the Hot Spot?, DURANGO HERALD (June 3, 2015),
http://www.durangoherald.com/article/20150603/NEWS01/150609907/What--x2019-s-causing-the-hot-spot--. 130 EPA, 2014 Greenhouse Gas Emissions from Large Facilities (Aug. 16, 2015),
http://ghgdata.epa.gov/ghgp/main.do (search for Data Year 2014, All Emitters, and filter by Greenhouse Gas =
methane and county level data). 131 EPA, 2011-2014 GHGRP Industrial Profiles: Petroleum & Natural Gas Systems at 10, 13 (2015),
http://www2.epa.gov/sites/production/files/2015-11/documents/subpart_w_2014_data_summary_10-12-
15_508_km.pdf (Appx. at 975).
77
TABLE 2
County Petroleum and Natural Gas Systems 2014
Methane Emissions (MT CO2e)
San Juan, NM 264101
La Plata, CO 59914
San Juan, UT 1537
Apache, AZ 23489
Mitigating the severity of climate change as a result of oil and gas development is especially
important because Indian Country is disproportionately impacted by climate change.132
Earthjustice et al. (0044): EPA has an obligation to protect visibility in Class I areas such as
national parks and wilderness areas.133 As discussed extensively in the Coalition ANPR
Comments, emissions from oil and gas sector sources in Indian country, especially in the Uinta
and San Juan Basins, contribute to impairment of visibility in several Class I areas.134
Specifically, emissions from oil and gas development on the Uintah and Ouray Reservation
cause or contribute to visibility impairment in at least eight Class I areas near the Uinta Basin,
including Dinosaur National Monument and Capitol Reef, Canyonlands, Arches, and Black
Canyon of the Gunnison National Parks. As the National Park Service noted, modeled impacts
from a recent analysis of oil and gas development in the nearby White River Field Office
Resource Management Area concluded that additional oil and gas activity “would ‘cause
visibility impairment’ at Dinosaur National monument.”135 Oil and gas development in the San
Juan Basin may also contribute to visibility impairment in Class I areas, including Mesa Verde
National Park.136
Earthjustice et al. (0044): Although EPA proposes a FIP to streamline the permitting process,
the Proposed FIP does not achieve the goals of the case-by-case permitting EPA established in
the tribal NSR rule—namely adequate protection of public health and the environment. The
Proposed FIP would allow minor oil and gas sources to forego preconstruction review and
permitting altogether and instead simply self-certify that they will comply with the six
regulations that already apply within Indian Country.
132 See, e.g., Jamie Kay Ford & Erick Giles, Climate Change Adaptation in Indian Country: Tribal Regulation of
Reservation Lands and Natural Resources, 41 WM. MITCHELL L. REV. 519, 524-26 (2014) (Appx. at 1001);
Sarah Krakoff, American Indians, Climate Change, and Ethics for A Warming World, 85 DENV. U. L. REV. 865,
865 (2008) (Appx. at 1023); accord Press Release, U.S. Dep’t of the Interior, Secretary Jewell Announces New
Tribal Climate Resilience Program (July 16, 2014), https://www.doi.gov/news/pressreleases/secretary-jewell-
announces-new-tribal-climate-resilience-program. 133 42 U.S.C. §§ 7491, 7492(e); see also 40 CFR § 81.000 (listing areas in which visibility has been determined to be
an important value). 134 Coalition ANPR Comments at 9–11. 135 Memorandum from Reg’l Dir., Intermountain Region, Nat’l Park Serv., to Planning and Envt’l Coordinator,
BLM 9 (2013), (Appx. at 1049). 136 See Marco A. Rodriguez, Michael G. Barna & Tom Moore, Regional Impacts of Oil and Gas Development on
Ozone Formation in the Western United States, 59 J. Air &Waste Mgmt. Ass’n 1111, 1111 (2009) (Appx. at 1061).
78
EPA has provided no analysis of whether these six regulations will adequately address the air
quality problems in Indian Country or ensure compliance with the NAAQS, Prevention of
Significant Deterioration Program, and the Visibility Protection program. [42 U.S.C. §§ 7602(y),
7470–71, 7473, 7491.] Given the existing air quality concerns and growing development within
Indian Country, EPA should do more, including regulating existing sources.
Earthjustice et al. (0044): EPA offers no explanation for how requiring operators to simply self-
certify that they will comply with existing regulations is sufficient to ensure air quality is
protected. Nor does EPA provide any analysis of how the six regulations will ensure protection
of the NAAQS or adequately protect public health and the environment. Without any analysis,
EPA simply states “we believe that the proposed oil and natural gas FIP contains a robust set of
emission control requirements and compliance monitoring and reporting provisions that will help
ensure that a new or modified true minor source would not cause or contribute to a NAAQS or
PSD increment violation.” [80 FR 56568.] Given the existing air quality concerns in Indian
Country—including existing violations of the NAAQS standards—and the expected growth in
development, EPA cannot make this assumption. [See infra pp. 5–8.]
In support of the Six Regulation approach, EPA notes that the emissions standards encapsulated
in the Six Regulation reflect the Best System of Emission Reduction (“BSER”), MACT, and
Generally Available Control Technology (“GACT”) for various pollutants and/or emissions
sources. [80 FR 56569.] However, these are not necessarily sufficient. As discussed above, the
purpose of the minor source permitting program is to ensure protection of the NAAQS and
prevent deterioration of air quality. Likewise, EPA’s regulations state that the agency “shall
promulgate without unreasonable delay such Federal implementation plan provisions as are
necessary or appropriate to protect air quality.”137 EPA cannot demonstrate that these regulations
are all that is necessary and appropriate to protect air quality in Indian Country. Given the
growth of oil and gas activity in Indian Country and the existing air pollution in many parts of
Indian Country, without going beyond the six regulations, the Proposed Rule will be inadequate
to protect public health and the environment in Indian Country.
Furthermore, as demonstrated in comments on the Proposed Amended NSPS Rule, EPA’s
proposed subpart OOOOa NSPS standards, which are among the six regulations, represent a
good step forward, but omit certain important elements from the scope of coverage. When
finalizing the OOOOa rule, EPA must strengthen the LDAR requirements and controls for
pneumatic devices and compressors, and expand coverage to include well site compressors,
storage tanks, and liquids unloading events. See Proposed Amended NSPS Comments.
Similarly, as past comments and petitions have demonstrated, the NESHAPs for oil and gas
sector sources also do not necessarily represent MACT or GACT. The existing NESHAPs rules
are themselves inadequate to protect public health. As a 2014 rulemaking petition explains,
EPA’s area source category for the oil and gas sector covers only glycol dehydrators, and does
not cover any other equipment. HAPs Rulemaking Petition at 24-25. Because emissions from oil
137 40 CFR § 49.11(a); see also 42 U.S.C. § 7602(y); Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1126 (10th Cir.
2009) (“[T]he key criterion in determining the adequacy of any [FIP] is attainment and maintenance of the national
air standards.”).
79
and gas sector sources typically fall below the threshold for regulation as a major source under
CAA § 112, by failing to regulate HAPs emissions from other emissions sources in the oil and
gas sector, EPA is allowing a significant volume of air toxics to harm public health.138 According
to EPA’s own analysis, the 2012 NESHAPs revisions only reduced annual oil and gas sector
HAPs emissions by 12,000 to 20,000 tons per year (“tpy”), leaving over 100,000 tpy
unregulated.139 Given this shortfall, a coalition of environmental and public health groups
requested that EPA regulate HAPs emissions from all sources in the oil and gas sector in order to
adequately protect public health in Indian country and nationwide.140 Public health and
environmental organizations provided further evidence that the current regulations do not
represent MACT by proving that EPA should regulate storage tanks without the potential for
flash emissions, which it proposed to do, but chose not to do in the final 2012 NESHAPs rule.141
Additionally, the current regulations do not represent MACT because EPA should regulate non-
BTEX HAPs emissions from small glycol dehydrators.142, 143
In sum, EPA’s decision to streamline permitting without ensuring protection of public health
violates the CAA. Existing rules have neither been sufficient to preserve healthy air in Indian
Country nor do they necessary represent MACT, and GACT. There are also important gaps in
the proposed OOOOa NSPS that EPA must address. In the FBIR FIP, EPA rebutted a comment
suggesting that streamlining was the purpose which animated the rule by explaining that “our
primary purpose for developing rules to regulate air emissions is to meet the requirements of the
CAA to protect the public health and the environment by providing those living on the
Reservation the same level of air quality and health protection as people living outside the
Reservation.” [78 FR 17839.] That should be the goal here as well.
Earthjustice et al. (0044): EPA should similarly provide criteria for when site-specific permits
will be required for new sources and increase opportunities for public and tribal engagement
around site-specific permits. EPA states that it “may require owners or operators to obtain a site-
specific permit in lieu of complying with the proposed FIP to ensure protection of the NAAQS.”
[Id.] Environmental and Tribal Commenters support EPA retaining the flexibility to require site-
138 See 42 U.S.C. § 7412(a)(1)-(2); see generally Comments of Earthjustice et al. on Source Determination for
Certain Emission Units in the Oil and Natural Gas Sector, Dkt. ID No. EPA-HQ-OAR-2013-0685 (Dec. 4, 2015)
(“Source Determination Comments”) (discussing how EPA’s source determination procedures prevent most oil and
gas sector sources from being regulated as major sources). 139 HAPs Rulemaking Petition at 25 (citing 77 FR 49490, 49,533-34 (Aug. 10, 2012). 140 See Comments of Sierra Club et al., Comments on National Emission Standards for Hazardous Air Pollutants
Review, Dkt. ID No. EPA-HQ-OAR-2010-0505 at 14 (Nov. 30, 2011) (“NESHAPs Comments”) (Appx. at 1129);
Earthjustice et al., Petition for Reconsideration of Oil and Natural Gas Sector: National Emission Standards for
Hazardous Air Pollutants Review, Dkt. ID No. EPA-HQ-OAR-2010-0505 at 6 (Oct. 15, 2012) (“NESHAPs PFR”)
(Appx. at 1324). 141 NESHAPs Comments at 96; NESHAPs PFR at 40. 142 NESHAPs Comments at 95; NESHAPs PFR at 42-44. 143 EPA has undertaken a process to gather more information about oil and gas sector HAPs emissions. On
November 4, 2015, EPA released a notice of publication in the federal register of a request for information related to
HAPs emissions from the oil and gas sector. EPA, Oil and Natural Gas Sector: National Emission Standards for
Hazardous Air Pollutants; Request for Information (Docket No. EPA-HQ-OAR-2015-074) (Nov. 4, 2015),
http://www3.epa.gov/airquality/oilandgas/pdfs/20151104fr.pdf. EPA specifically requested data about HAPs
emissions from storage tanks without potential flash emissions, a source category which it proposed to regulate, but
chose not to regulate in the final 2011 NESHAPs rule. Id. at 9-12. EPA also requested data about non-BTEX HAPs
emissions from small glycol dehydrators. Id. at 12–15.
80
specific permitting prior to a nonattainment designation, but recommend that EPA provide
additional criteria for when this will occur.
EPA states that “the Reviewing Authority may determine that the source is not sufficiently
controlled under the proposed FIP to protect the NAAQS in the area of the proposed project (e.g.
if the measured design value for the area is close to or above the level of the NAAQS).” [80 FR
56564.] Rather than these vague and undefined criteria, we recommend that EPA require site-
specific permitting under similar scenarios as FIPs. For example, EPA should require site-
specific permitting when two years of monitoring data establishes average fourth-highest values
above 60 ppb. As with reservation-specific FIPs, EPA should rely on all reliable monitoring data
in the region. EPA should also provide tribes, tribal members, and members of the public with a
means to request site-specific permits. Finally, EPA should implement procedures to ensure that
tribes and members of the public receive sufficient notice and opportunity to comment on any
future site-specific permits that will be issued.
Earthjustice et al. (0044): Modeling is also useful outside of the reservation-specific FIP
process. EPA should consider requiring operators to conduct modeling to determine whether and
how proposed new and modified sources will contribute to degradation of air quality as part of
the site-specific permitting process.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): EPA appropriately
acknowledges that there is currently a gap in regulation of air quality in Indian country, where
until recently, there have been limited means to address pollution threats from minor sources.144
This gap remains especially glaring in light of air quality threats from the existing and
burgeoning oil and gas industry on tribal lands, documented above. [See supra, Section I.] The
lack of minor source regulatory programs in Indian country denies tribal communities the
protections that Congress intended in enacting Section 110(a)(2)(A) of the CAA, which requires
states such pollution control measures “as may be necessary or appropriate” to meet the
requirements of the CAA, including the maintenance of air quality standards. [Id. §
7410(a)(2)(A).] Accordingly, EPA action to address this gap is needed to comply with “the basic
requirement that the Agency will promulgate a FIP for affected tribal areas within some
reasonable amount of time” where tribal efforts have not produced an approved implementation
plan. [TAR, 40 CFR § 49.11(a)]
EDF ANPR Comments – referenced by Earthjustice et al. (0044): A protective FIP is the best
method of regulating emissions from oil and gas production on tribal lands because it would
allow the agency to comprehensively and consistently address emissions from the oil and gas
sector. A FIP should address both new and existing sources, be uniform across regions to provide
adequate public health protections and administrative efficiency, and include reasonable
flexibility to accommodate innovative and effective pollution control strategies. EPA has
demonstrated through the Fort Berthold FIP that this method is an effective and workable tool to
address oil and gas emissions on tribal lands.
144 See Review of New Sources and Modifications in Indian Country, 76 FR 38748, at 38749–50 (July 1, 2011)
(“Prior to this action there has been no Federal permitting mechanism for minor sources in Indian country…”).
81
EDF ANPR Comments – referenced by Earthjustice et al. (0044): We respectfully urge EPA to
adopt a uniform FIP that requires bedrock public health protections in tribal lands across the
country. EPA acknowledged in the ANPR that “uniform standards that apply to all sources are
less complex to establish and implement than requirements that vary.” [Id. at 32517] Further, all
of the control technologies discussed below and in the appendix to these comments are broadly
applicable and would not require site-specific permitting. A consistent FIP would also increase
regulatory certainty for operators on tribal lands. Alternatively, EPA notes that “[i]nconsistent
regulations could also be more difficult and complicated for the regulated community to
understand and comply with, especially for companies with operations in multiple areas.” [Id.]
To write a rule that varies by region or basin, EPA would need additional time for the
rulemaking process, which would delay compliance schedules, the time required to achieve
emissions reductions, and the corresponding public health benefits.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): EPA should broadly apply
the protective measures of a FIP to all tribal lands where significant oil and gas development is
taking place, and not just areas that are not in attainment for ozone. When EPA promulgates a
FIP under its gap-filling authority, EPA has both the authority and the responsibility to craft a
program that is fully protective of public health and takes into account the multi-pollutant
benefits that result from controlling oil and gas emissions. In its Federal Minor NSR Rule, also a
FIP, EPA laid the groundwork to protect tribal lands from emissions of a group of pollutants that
included criteria pollutants and their precursors, such as particulate matter, sulfur dioxide, and
nitrogen oxides, but also included other pollutants of concern, such as hydrogen sulfide and
municipal waste combustor emissions. [See 40 CFR § 49.153 table1] Here too, EPA should issue
standards that ensure that modern technologies and practices will be used to minimize the full
suite of harmful emissions from the oil and gas sector, including but not limited to those areas
that are in nonattainment or on the verge of nonattainment with the ozone NAAQS.
Comprehensive and uniform emission standards for oil and gas sources are also consistent with
the basic purposes of NSR, which include “protect[ing] public health and welfare from any
actual or potential adverse effect which . . . may reasonably be anticipate[d] to occur from air
pollution.” [Id. § 7470(1).] In addition, it is a basic principle of the CAA that states – and EPA,
when standing in the shoes of a state, can issue standards that go beyond the minimum
requirements of the CAA in protecting public health. As one federal appellate court has
recognized, “there is no requirement that a gap-filling federal plan be only as strict as necessary
to meet national air standards.”145
EDF ANPR Comments – referenced by Earthjustice et al. (0044): EPA has broad legal
authority and responsibility to protect air quality in Indian country, and in particular to do so by
issuing a comprehensive FIP that protects tribal communities from the full suite of harmful
pollutants from existing oil and gas sources as well as new and modified sources—as EPA
suggests it is considering in the ANPR. EPA’s authority to promulgate a comprehensive FIP for
145 Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130 (10th Cir. 2009) (upholding a source-specific FIP on tribal
land that surpassed the minimum requirements of the Clean Air Act). See also S. Terminal Corp. v. EPA, 504 F.2d
646, 668 (1st Cir. 1974) (The CAA’s “statutory scheme would be unworkable were it read as giving to EPA, when
promulgating an implementation plan for a state, less than those necessary measures allowed by Congress to a state
to accomplish federal clean air goals.” (emphasis added)).
82
minor oil and gas sources on tribal lands derives from Section 301(d) of the CAA. [42 U.S.C. §
7601] Section 301(d) provides that EPA “may provide, by regulation, . . . means by which the
Administrator will directly administer” CAA programs when the Administrator determines that
is “inappropriate or administratively infeasible” for tribal authorities to implement them. [42
U.S.C. § 7601(d)(4)] When acting pursuant to its section 301(d) authority, EPA may administer a
CAA program “in the shoes of a tribe” and establish protections under the Clean Air Act.146
EPA’s authority to issue a protective FIP for the oil and gas sector derives from section 301(d)
and the Tribal Authority Rule (TAR), in which EPA delineated the CAA provisions for which
EPA would treat tribes in the same manner as states.147 The TAR specified that EPA would not
treat tribes as states with respect to statutorily prescribed deadlines for submitting State
Implementation Plans (“SIPs”) and FIPs. In doing so, EPA recognized that the agency “is not
relieved of its general obligation under the CAA to ensure the protection of air quality
throughout the nation, including throughout Indian Country.” [TAR, 63 FR 7265] Further, in
fulfilling this general obligation “EPA may act to protect air quality pursuant to its ‘gap-filling’
authority under the Act as a whole,” even “in the absence of an express statutory requirement” to
promulgate a FIP. [Id. (citing CAA Section 301(a)).] Where a gap in protection of air quality
exists, EPA has broad authority to act to protect air quality, and discretion to determine what
rulemaking is necessary and appropriate to protect air quality.148
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): National uniform
requirements for new and existing sources across all areas of Indian country are necessary to
protect public health and welfare and are cost-effective to implement. Even with baseline
controls, however, certain regions may need additional attention. Therefore, EPA’s approach
must also be flexible enough to account for regional variation and industry growth over time. We
recommend an approach that includes baseline FIP for new and existing sources, regional FIPs
for areas that are at or approaching air quality standards, and opportunities for increased public
input where sensitive resources are at stake.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): A FIP could incorporate
mechanisms to promote technological innovation. A company could apply for alternative site-
specific controls if it demonstrates that the proposed measures would exceed the FIP’s
requirements. In this way, a FIP can incorporate flexibility to encourage industry to experiment
with new monitoring and emissions control technology. This structure would help limit the
number of permit applications while advancing other important policy goals.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Promulgating rigorous
emissions controls through a FIP is consistent with economic development. For instance, several
of the cost effective control measures highlighted by the ICF Report have been successfully
applied to new, existing, and modified sources through the Fort Berthold FIP, at a cost
146 Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir. 2001). 147 Indian Tribes: Air Quality Planning and Management, 63 FR 7254 (Feb. 12, 1999) [hereinafter TAR]; see
Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) (upholding the TAR in its entirety). 148 Arizona Public Service Co. v. EPA, 562 F.3d 1116, 1125 (10th Cir. 2009).
83
effectiveness of less than $15 per ton VOC reduced.149 The Fort Berthold FIP requires control
measures such as VOC reductions from well completions and recompletions and control of
casing head emissions.150
States that have implemented robust emissions control regulations have experienced more
growth in oil and gas production than states without similar regulations. For example, despite
promulgating more stringent emissions control requirements, Colorado’s operational rig count
grew 21 percent annually between 2000 and 2010, a rate higher than Texas, Oklahoma, New
Mexico and Louisiana, and higher than the overall U.S. growth rate of 12 percent.151 After
Colorado’s green completion requirement was promulgated in April 2009, horizontal well permit
approvals increased 126 percent from 2009 to 2010, and 147 percent in 2011.152 Similarly,
Wyoming implemented green completion requirements in March 2010, and horizontal drilling
permit approvals increased over 900 percent in two years. [Id.]
Lastly, emission controls that capture previously vented, flared, or leaked natural gas will lead to
increased royalty payments for tribal communities.153
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): EPA must ensure
opportunities for meaningful tribal and public comment. The streamlined approaches proposed
by EPA, including FIP, general permit, and permit by rule, do not provide for sufficient public
input. A FIP or a permit by rule approach would provide only a one-time opportunity for public
comment. Although a general permit allows for public input when a source applies to be covered
under the general permit, this input is limited to whether the source qualifies for the relevant
source category. This limited public input is insufficient where sources are located near homes,
schools, otherwise occupied building, and recreational areas, or are likely to impact sensitive
receptors, like national parks, wilderness areas, or important tribal resources. Under these
circumstances, we urge EPA to provide additional opportunities for public and tribal input. EPA
could do this by requiring compliance with the Indian Country Minor NSR permitting
procedures or, at a minimum, requiring additional opportunities for tribal and public participation
as part of a FIP.
Western Energy Alliance (0045): Western Energy Alliance supports a number of components
proposed in the National FIP. First, we support EPA’s decision to use a FIP as the regulatory
mechanism for this program. We agree with EPA’s stated sentiment that “[t]he FIP would reduce
burden for sources and the Reviewing Authority and prevent delays in new construction due to
the minor NSR permitting obligation.” [80 Federal Register 56557 (Sept. 18, 2015).]
149 Fort Berthold FIP, 78 FR 17849, 17851 (applying to new, existing and modified sources with a well completion
or re-completion initiated by August 12, 2007). 150 Id. at 17853. 151 EIA, Natural Gas Data, http://www.eia.gov/dnav/ng/ng_pri_sum_dcu_nus_a.htm. 152 Baird Equity Research, Energy Policy: Upstream, Unconventional Drilling Regulations—Quarterly Update 11
(Mar. 16, 2012), https://baird.bluematrix.com/docs/pdf/70b8e0c5-7762-49ca-be28-
3d8b3bcc12ba.pdf?co=Baird&id=jpolson@bloomberg.net&source=mail. 153 25 CFR § 212.41; see also 25 CFR § 211.41; 30 CFR § 1206.52–53. A GAO report estimates that $58 million in
federal royalty payments was lost in 2008 nationwide due to natural gas venting and flaring, 40 percent of which
could be captured economically. GAO, at 24–25.
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Western Energy Alliance (0045): EPA’s Site-Specific Permitting Authority under the Proposed
National FIP Is Overly Broad and Potentially Exceeds Agency Authority - Western Energy
Alliance is concerned with EPA’s proposal to require minor site-specific permits on a case-by-
case basis, in lieu of the streamlined registration process provided in the National FIP. The
proposal grants EPA with overly broad and unrestricted discretion to require site-specific
permits. Proposed 40 CFR Section 49.101(b)(3) provides that EPA may require owners and
operators of oil and natural gas production facilities to obtain a site-specific permit “to ensure
protection of the NAAQS.” [80 Federal Register 56564, 56573 (Sept. 18, 2015).] EPA further
expands on its discretion in the preamble stating, “the Reviewing Authority may determine that
the source is not sufficiently controlled under the proposed FIP to protect the NAAQS in the area
of the proposed project (e.g., if the measured design value for the area is close to or above the
level of the NAAQS). In that circumstance, the Reviewing Authority can require the minor
source to obtain a site-specific permit.” [80 FR 56564.] The authority laid out in this proposal to
require site-specific permitting is too broad.
American Petroleum Institute (API) (0046): While the O&G FIP acknowledges several
practical considerations for permitting oil and natural gas sources, the proposed program falls
short of many of the streamlining permitting objectives mentioned above that are found in
corresponding state programs including:
• The proposed O&G FIP is based on a pre-construction registration process rather than
a post-project notification process.
• The proposed O&G FIP gives EPA overly broad discretion to mandate source-
specific permitting for minor sources and modifications.
American Petroleum Institute (API) (0046):
Proposed Language
(3) Owners and operators of facilities that meet the criteria specified in paragraph (b)(1)
of this section that the Reviewing Authority requires to obtain a site-specific permit to
ensure protection of the NAAQS as specified in 40 CFR §49.155 before beginning
construction are not required to comply with §§49.101 to 49.105 [§49.101(b)(3)].
Issue
This provision appears to allow the permitting authority to require case-by-case permitting of an
affected source when needed “to ensure protection of the NAAQS.” API does not object to this
provision in concept and we understand that the FIP should not be available as an alternative to
case-by-case permitting in situations where compliance with the FIP would not prevent a
NAAQS violation.
Due to the long lead times for obtaining site-specific permits, if EPA rejects the registration and
requests a site-specific permit, it can result in significant impacts to energy development and
considerable uncertainty for enforcement risk to operators. The language in §49.101(b)(3)
provides no criteria for which EPA intends to pursue this authority. Accordingly, different permit
writers could employ this authority inconsistently thereby disadvantaging one company from
another. Costs associated with oil and gas development accrue on a daily basis and open-ended
85
delays from arbitrary criteria can result in significant economic impacts to oil and gas companies
who met the criteria outlined in the O&G FIP for registering their source under the streamlined
permitting program.
The rule should include additional criteria to make sure this provision is limited to situations
where the affected source contributes to an air quality violation. For example, it is often the case
in PSD permitting that modeling predicts the existence of a NAAQS exceedance, but the
proposed source or modification is determined not culpable for the predicted exceedance because
its contribution to the predicted exceedance is too small. In other words, a PSD permit can and
should be issued for a proposed source or modification – even when modeling predicts a
NAAQS exceedance – when it is determined that the source or modification does not cause or
contribute to the predicted exceedance.
The O&G FIP should include similar limits on the ability of a permitting authority to require
case-by-case permitting for an affected source otherwise eligible for the FIP.
American Petroleum Institute (API) (0046):
Recommendation
With the inclusion of a transition policy allowing the proposed O&G FIP to be available for use
in marginal and moderate nonattainment areas, the authority to require site-specific permitting to
ensure protection of the NAAQS pursuant to §49.101(b)(3) should no longer be required.
If EPA believes it must maintain this authority, the Agency must specify in the Rule specific
criteria for which it will use its authority. EPA should provide supporting documentation
justifying any rejection of an oil and gas source to utilize the O&G FIP registration process that
otherwise meets the qualifying criteria outlined in the Rule. Due to the considerable costs
associated with project delays, the Agency should notify the operator of such a determination
within 15 calendar days of receipt of registration package.
API suggests the following changes to §49.101(b)(3):
(3) If sufficient evidence is provided on the record that a proposed source would cause or
contribute to a NAAQS exceedance, the Reviewing Authority may require a site-specific
permit as specified in 40 CFR §49.155 before beginning construction. Under this
scenario, the Reviewing Authority will notify the owner or operator of the requirement to
obtain a site-specific permit and provide the corresponding evidence for contributing to a
NAAQS exceedance within 15 calendar days of receipt of the registration package
[§49.101(b)(3)].
American Petroleum Institute (API) (0046):
Proposed Language
Owners and operators of new true minor oil and natural gas sources or minor
modifications at existing true minor oil and natural gas sources as determined pursuant
to 40 CFR 49.153(a) that meet the criteria specified in paragraphs (b)(1)(i) through
(b)(1)(v) of this section, shall comply with the requirements of §§49.104 and 49.105,
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unless the owner or operator obtains a site-specific permit as specified in paragraph
(b)(2) or (b)(3) of this paragraph [§49.101(b)(1)].
Issue
As API explained in its petition for reconsideration, emission sources, such as internal
combustion engines, often are relocated on short notice, and, on occasion relocation must be
changed with little advance warning to prevent significant operational disruption such as well
shut-ins. Given these realities, a 30-day advance notice requirement is incompatible with
relocation practices in the oil and gas sector.
It is common practice in the oil and gas sector to maintain a pool of engines so that when an
engine in the field needs repairs or maintenance that engine can be removed and immediately
replaced with an engine from the pool. The removed engine is then taken to another location for
the needed repairs or maintenance to be performed. This practice avoids the delays and potential
safety hazards associated with on-site maintenance. To minimize production disruptions and
align with state permitting programs for oil and gas such as Colorado, Wyoming, North Dakota,
and Utah, the proposed FIP for oil and gas operations should authorize such engine swaps.
Recommendation
API recommends that the proposed O&G FIP clarify that the following routine changes do not
constitute a “modification” subject to the registration process. These changes should be allowed
without requiring pre-registration or notification prior to making the change as long the change
does not impact the facility’s minor source status:
1. Replacement-in-kind of internal combustion engines and temporary engines
2. Control device additions, removals, and replacements (as allowed by federal rules)
Within 60 calendar days of completing of one of the authorized equipment changes, owners or
operators can provide an updated registration package identifying any changes to the emission
units provided in the existing registration package.
Owners and operators of new true minor oil and natural gas sources or minor
modifications at existing oil and natural gas sources as determined pursuant to 40 CFR
49.153(a) that meet the criteria specified in paragraphs (b)(1)(i) through (b)(1)(v) of this
section, shall comply with the requirements of §§49.104 and 49.105, unless the owner or
operator obtains a site-specific permit as specified in paragraph (b)(2) or (b)(3) of this
paragraph [§49.101(b)(1)].
…
(vi) For purposes of Federal Implementation Plan for oil and natural gas production
sources located in Indian Country, the following activities are not considered to
constitute “modifications” subject to the pre-construction process described in 40 CFR
49.160:
A. Replacement-in-kind of internal combustion engines and temporary engines
B. Control device additions, removals, and replacements (as allowed by federal
rules)
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American Petroleum Institute (API) (0046): The CAA provision mandating minor NSR
programs is section 110(a)(2)(C). It provides significant flexibility to permitting agencies as to
how they structure their permitting programs for the construction and operation of minor sources.
Courts have ruled that states have wide discretion in the design of their programs.154 Given the
difficulties in quantifying emissions for oil and gas production operations prior to production,
several states have used the available flexibility to implement oil and gas-specific programs to
customize the process in order to take advantage of the flexibility provided in the Act and ensure
accurate information is provided during the initial permitting process to avoid unnecessary
burden to the permitting agencies to update information submitted before emissions data is
available. In addition to creating agency processing burden, the submittal of inaccurate
information can create confusion for operators, inspectors, and the public. EPA should follow the
examples of the states that have addressed oil and gas sources in streamlined minor NSR
programs. This will ensure oil and gas development on Indian lands is not disadvantaged as
compared to pursuing development on non-Indian lands with established state streamlined
permitting processes.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #19: One commenter (0031) proposed that a general permit or permit by rule would be
the best permitting approach for Indian country and could allow for legally and practically
enforceable limits. They further suggested that ambient air quality impact modeling could be
used to develop the general permit or permit by rule to ensure protection of the NAAQS.
Response #19: In the Advanced Notice of Propose Rulemaking (ANPR), the EPA committed to
developing an alternative to source-specific permits primarily to avoid delays in new
construction due to our inability to process potentially thousands of true minor oil and natural
gas source permits in an acceptable timeframe. Comments received on the ANPR and on the
proposed FIP were generally supportive of a FIP approach, which we are finalizing. As indicated
above, we continue to believe that the FIP approach can best protect air quality in attainment,
attainment/unclassifiable and unclassifiable areas, while providing streamlined permitting. We
do not believe that modeling is necessary to ensure air quality protection in attainment,
attainment/unclassifiable and unclassifiable areas given the comprehensive nature of the
requirements in the eight standards underlying this FIP.
Comment #20: Several commenters (0032, 0039, 0044, 0045) expressed concern that a FIP
would not provide an opportunity for comment about a specific facility’s coverage under a FIP.
In particular, commenters noted that there may be concerns specific to particular sites that are not
addressed within the existing FIP. One commenter noted that under a FIP, tribes and the public
154 See Train v. NRDC, 421 U.S. 60, 79 (1975) (“The Act gives the Agency no authority to question the wisdom of a
State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110 (a) (2), and the
Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan
which satisfies those standards.”).
88
are only provided a one-time opportunity to provide feedback on the proposed rule and would
not be provided the opportunity to comment on individual sources proposed in their tribal area.
Response #20: The EPA agrees with the importance of providing opportunity for comment on
the FIP. The EPA held three public hearings across the country155 to solicit comments on the
proposed FIP and also extended the public comment period on the proposed FIP by 21 days from
November 14, 2015 until December 4, 2015. If the EPA requires a source-specific permit or
develops an area-specific FIP, there will be additional opportunity for public comment on those
specific permitting actions at that time.
In addition, new and modified sources under the FIP will have to register and provide source
information and emissions. Each completed registration will be added to the EPA Regional
Office web sites.156 If a citizen has information that a particular source may not be complying
with the FIP, or that compliance with the FIP may not be sufficient due to air quality concerns in
a particular area, the information could be brought to the EPA’s attention.
Comment #21: One commenter (0032) requested a commitment from the EPA to provide
funding to tribes for the development of TIPs to regulate minor oil and natural gas sources
specific to areas under their jurisdiction, including the potential future regulation of existing
minor sources. One commenter expressed an interest in developing a TIP. The commenter noted
that the EPA promulgated the "Tribal Authority Rule" in 1998 to provide more detailed criteria
and procedures for tribes to be treated as states under the CAA if they seek CAA program
approval, and that tribes are authorized to develop a comprehensive TIP and to seek full
authority to monitor and enforce the NAAQS within their reservation. The commenter expressed
interest in exploring the possibility of working toward a TIP so that it may one day assume
primacy over certain regulatory functions and gradually expand its authority.
Response #21: The EPA supports tribes developing their own air programs and, as desired, TIPs.
The EPA has historically provided funding and other technical support towards this goal, and we
will continue to seek tribal air funding and support. In particular, we anticipate proactively
supporting development of TIPs, especially in areas with air quality DVs above the NAAQS.
Comment #22: Several commenters (0038, 0039, 0045, 0046) expressed concern about
provisions in the proposed FIP allowing the EPA the discretion to require source-specific
permitting to “ensure attainment of the NAAQS” on a case-by-case basis. This might particularly
affect areas in Indian country where design values are close to the current ozone NAAQS of 70
ppb. In addition, commenters expressed concern that given the 30-day notice provided for under
the FIP, the notification that a facility has been denied coverage under the FIP and will be
155 The dates and locations of the hearings were as follows: Denver, Colorado, September 23, 2015; Dallas, Texas,
September 23, 2015; and Pittsburgh, Pennsylvania, September 29, 2015. “Source Determination for Certain
Emission Units in the Oil and Natural Gas Sector; Oil and Natural Gas Sector: Emission Standards for New and
Modified Sources; and Review of
New Sources and Modifications in Indian Country: Federal Implementation Plan for Managing Air Emissions From
True Minor Sources Engaged in Oil and Natural Gas Production in Indian Country,” U.S. Environmental Protection
Agency, 80 FR 51991, August 27, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-08-27/pdf/2015-21255.pdf. 156 For example, for EPA Region 8, the following web site will be used to provide the completed registration forms:
https://www.epa.gov/caa-permitting/tribal-nsr-permitting-region-8.
89
required to obtain a source-specific permit might be received only at the last minute, causing
financial burden on operators that have already initiated procurement of construction materials
and labor. The commenters explained that the EPA should provide the criteria by which they will
require source-specific permits, and should consider including modeling demonstrations as part
of source-specific permitting. One commenter objected to the broad and unrestricted manner
under which the FIP allows the EPA to require a source to obtain a source-specific permit, and
requested that the EPA provide more definitive language on what critieria it would use to
disallow a source to construct under the FIP and to require a source-specific permit.
Response #22: The EPA continues to believe that this FIP will be protective of air quality in
attainment, attainment/unclassifiable and unclassifiable areas of Indian country, provided we
retain the ability to require source-specfic permitting as needed to protect air quality. The EPA
intends to make those determinations on a case-by-case basis. Factors we will consider include:
levels of measured air quality relative to the NAAQS and rates of growth in oil and natural gas
production activity and associated changes in emissions. Any decision to require source-specific
permitting will apply to the entire area in question and to all sources planning to locate or expand
in such area and we will provide advance notice to owners/operators and tribes in the affected
area prior to a programmatic, area-wide imposition of source-specific permitting.
Comment #23: Several commenters (0039, 0040, 0044) encouraged the EPA to develop
reservation-specific or region-specific FIPs that account for particular air quality concerns and
that are consistent with the permitting rules and requirements of the surrounding states. This will
help level the playing field between neighboring permitting jurisdictions and ensure that oil and
natural gas development on tribal lands is not disadvantaged solely due to permitting differences.
One commenter (0039) specifically referred to the Uintah and Ouray Indian Reservation, which
is a tribal area at risk of nonattainment designation under the lowered ozone standard. The
commenter noted that revenue generated from oil and natural gas development in this area is an
important part of the tribal and regional economy. One commenter suggested that the EPA not
wait until certain areas are re-designated as nonattainment to develop area-specific FIPs, but that
the EPA should develop area-specific FIPs for areas in danger of re-designation immediately,
notably the Uinta Basin and the San Juan Basin.
One commenter (0044) stated that the EPA should define “necessary or appropriate” by
identifying more specific criteria for when reservation-specific FIPs will be issued. The
commenter suggested that one such criterion would be ozone concentrations close to the
NAAQS. The commenter further recommended that the EPA should base its decision on the
availability of two years of valid monitoring data, considering data from all available, reliable
monitors, regardless of whether the EPA has certified them as regulatory monitors.
Response #23: The EPA continues to believe that this FIP will be protective of air quality in
attainment, attainment/unclassifiable and unclassifiable areas of Indian country. We,
nevertheless, have the authority to promulgate reservation-specfic FIPs if we determine that it is
necessary or appropriate to protect air quality. The EPA intends to make those determinations on
a case-by-case basis. Factors we will consider include: levels of air quality the area in question is
experiencing relative to the NAAQS, rates of growth in oil and natural gas production activity,
and associated changes in emissions in the area in question. We will work with tribes in
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developing any area-specific FIP that we determine is necessary or appropriate to protect air
quality and will provide notice and an opportunity for comment prior to the promulgation of an
area-specific FIP.
Comment #24: One commenter (0044) noted that tribal areas across the country currently
include thousands of wells, and that there are thousands more forthcoming. Accordingly, all of
this activity gives rise to ever-increasing emissions, exposes tribal members to harmful air toxics
and impacts visibility in Class I areas such as national parks and wilderness areas. In addition, oil
and natural gas sector emissions include large quantities of methane, which contributes to
climate change. The commenter encourages the EPA to develop national uniform requirements
to protect public health and welfare and to mitigate the severity of climate change.
Response #24: The EPA agrees with the commenters that oil and natural gas development in
tribal areas results in emissions of harmful air toxics and other pollutants of concern. To mitigate
these impacts, the proposed FIP included a uniform set of requirements from six current federal
rules that apply in all tribal areas. In addition to these six, the EPA is adding two additional rules
to the final FIP: 40 CFR part 60, subpart KKKK, and 40 CFR part 63, subpart ZZZZ. This suite
of eight federal rules ensures: (1) comprehensive application of the latest control technologies
and unit processes found in the oil and natural gas sector; and (2) that the sector is controlled
under the FIP. In addition, as needed to protect air quality, the EPA will continue to develop
area-specific FIPs and/or utilize source-specific permitting for areas with poor or degraded air
quality. The Federal Indian Country Minor NSR rule is not intended to address climate change
per se; however, compliance with a number of the included rules will lead to co-reductions in
emissions of methane, which is a potent greenhouse gas (GHG).
Comment #25: One commenter (0046) requested to have certain activities not considered
modifications, including in-kind replacement of internal combustion and temporary engines, as
well as control device additions, removals, and replacements as allowed by federal rules. This
would allow operators to move equipment off site to perform needed repairs or maintenance to
avoid production delays and to mitigate potential hazards associated with on-site maintenance.
Response #25: On May 30, 2014, the EPA finalized revisions to the Federal Indian Country
Minor NSR rule that exempted certain internal combustion engines from the permitting
requirements under the rule.157 These included certain emergency generators and stationary
engines with a horsepower rating less than 50. The final rule also provided guidance to industry
specifically in response to a comment regarding the relocation or replacement of single pieces of
equipment (e.g., an internal combustion engine) in the oil and natural gas sector. The source
owner/operator should verify with its Reviewing Authority that the “matching” situation
described in the preamble to the final May 30, 2014 rule, and its stated outcome, applies to its
case. Concerning control device additions, removals, and replacements, a broad exclusion for
consideration as a modification cannot be given. Changes regarding control devices have the
potential to increase emissions, and, thus, the potential emissions impact would have to be
assessed by the owner/operator. To the extent that these changes result in emissions increases
157 “Review of New Sources and Modifications in Indian Country – Amendments to the Federal Indian Country
Minor New Source Review Rule,” U.S. Environmental Protection Agency, 79 FR 31035, May 30, 2014,
https://www.gpo.gov/fdsys/pkg/FR-2014-05-30/pdf/2014-11499.pdf.
91
that fall below the minor NSR thresholds or satisfy the criteria under the definition of
modification in §49.152, there would be no requirement to register the unit(s) or to make a
change to a prior registration. Under §49.152, the following exemptions to modifications apply:
A physical or operational change does not include routine maintenance, repair or
replacement.
An increase in the hours of operation or in the production rate is not considered an
operational change unless such change is prohibited under any permit condition that is
enforceable as a practical matter.
A change in ownership at a stationary source.
The emissions units and activities listed in §49.153(c).
4.1 Synthetic Minor Sources and Minor Modifications at Major Sources
Ute Indian Tribe (0039): The proposed FIP does not provide a streamlined approach for the
Tribe's industry partners to obtain synthetic minor permits for oil and natural gas operations. By
excluding synthetic minor sources from the FIP, operators must obtain synthetic minor permits
through the complex and specific case-by-case permitting process established in §49.158. The
absence of a streamlining mechanism would place oil and natural gas development on the
Reservation at a distinct disadvantage when competing for development opportunities with
adjacent state lands. To promote competition and reduce delays, EPA should consider including
synthetic minor sources in its streamlining mechanism. Such an inclusion would both facilitate
and streamline compliance with the minor NSR in Indian Country.
Ute Indian Tribe (0039): Minor modifications should not be subject to source-specific
permitting and more burdensome review than the same size new source or modifications at
minor sources. The Tribe is concerned about the applicability of the FIP if the Uinta Basin is
designated nonattainment. Although EPA has provided streamlined minor NSR in nonattainment
areas for other source categories, it has excluded oil and gas sources in nonattainment areas from
streamlined minor NSR. As a result, source-specific minor NSR will apply to all minor source
emission increases from oil and gas sources above 2 tons per year. Such a requirement will
certainly limit oil and gas activity on the Reservation.
To both facilitate and encourage development on the Reservation, the FIP should be available for
minor modifications at major sources and modifications at synthetic minor sources. Both of these
modifications can be of the same size and type as modifications at a true minor source. Through
the proposed rule, EPA limits the FIP to modifications at true minor sources. Requiring source-
specific permitting for major sources and synthetic minors seems both inefficient and excessively
burdensome.
QEP Resources, Inc. (0038): EPA must treat synthetic minor sources the same as true minor
sources in the National FIP. EPA's decision to disregard synthetic minor sources in this proposal
is problematic and significantly restricts the overall utility of the program.
The FIP does not establish a mechanism to limit the PTE for synthetic minor sources or synthetic
minor modifications. A number of emission sources common in the oil and gas production sector
are not subject to the six federal standards incorporated in the National FIP and therefore, there is
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no mechanism to obtain federally enforceable limits for such sources outside of site-specific
permitting. Please note the following examples:
• Storage vessels not subject to NSPS;
• Flares burning separator/treater gas (no NSPS/NESHAP applies to separators) that,
without enforceable controls, may exceed major source thresholds in and of itself;
• Heaters not located at major sources of HAP and not subject to NESHAP DDDDD;
• Engines grandfathered from NSPS and not subject to control requirements under
NESHAP ZZZZ;
• Area source glycol dehydration units not subject to controls under NESHAP HH; and
• Pneumatic pumps grandfathered from the forthcoming NSPS OOOOa.
QEP Resources, Inc. (0038): Longstanding EPA policy recognizes that general permits, permits
by rule and FIPs are appropriate tools for creating synthetic minor sources. Take, for example,
the FBIR FIP. [78 FR 17836 (Mar. 22, 2013).] As explained in the preamble of the National FIP,
"The FBIR FIP does provide legal and practical enforceability for the use of VOC emission
controls" [80 FR 56567.] These FBIR FIP controls provide operators with a predictable and
reasonable timeline to permit new development. QEP requests these same types of legal and
practically enforceable emission control options in the National FIP and supports the specific
regulatory solution proposed by WEA in its comment letter filed with Docket 10 No. EPA-HQ-
OAR-2014-0606.
Without specific limitations within the National FIP to limit the PTE for synthetic minor sources
and synthetic minor modifications, an overwhelming number of operators in Indian country will
have to obtain site-specific permits for future development. As a result, EPA will receive an
overwhelming number of individual permit applications that will create an undue burden on the
Agency and its resources. Furthermore, development efforts in Indian country will experience
lengthy permitting delays and interruption in new construction, thereby disadvantaging
production from Indian country compared to state lands.
Gas Processors Association (GPA) (0040): At the same time, however, GPA respectfully
requests EPA make a number of enhancements to the program to make it more effective.
Specifically, EPA should:
• Expand the scope of the proposed FIP to include both synthetic minor sources and gas
processing plants as well as to allow voluntary participation for existing sources
• Include a self-certification in the registration to voluntarily limit emission rates below
regulatory limits, similar to state programs
Gas Processors Association (GPA) (0040): While the proposed FIP would provide much-needed
benefits to true minor sources that would otherwise be required to comply with site-specific
preconstruction permitting requirements, it does not go far enough to ensure the continued
competitiveness of oil and natural gas development in Indian Country. Therefore, GPA urges
EPA to expand the scope of the FIP to include synthetic minor sources, as well as natural gas
processing facilities. Streamlined permitting processes are commonplace in state-administered
preconstruction review programs. Unlike the proposed FIP, however, state-administered
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programs typically include both true minor and synthetic minor sources and also extend to both
gathering and processing facilities. As proposed, the FIP would result in a more burdensome site-
specific permitting approach for synthetic minor sources and gas processing plants than that used
by most states. Under such an approach, oil and natural gas production in Indian Country would
be at a competitive disadvantage due to higher permitting costs and longer permit lead-times. To
avoid this situation and fulfill the federal government’s fiduciary duties, the proposed FIP should
be expanded as described below.
Gas Processors Association (GPA) (0040): GPA agrees with EPA that a streamlined process for
approving new and modified sources in Indian Country can provide important benefits from both
an environmental and business perspective. However, to fully realize EPA’s goals and promote
oil and gas development with appropriate environmental protections, it is critical that EPA
expand the proposed FIP to incorporate synthetic minor sources.
As proposed, the FIP would apply only to true minor sources with a potential to emit that is
below major source thresholds. [80 FR 56572.] Including synthetic minor sources in this
streamlined permitting process would alleviate uncertainty for owners and operators in the oil
and natural gas sector and provide necessary consistency with other preconstruction review
programs administered by EPA and the states.
First, expanding the proposed FIP to include synthetic minor sources will provide regulatory
certainty to GPA’s members while also realizing the strongest environmental protection. Due to
constantly changing conditions in oil and natural gas production, there is often some uncertainty
about calculating a source’s potential to emit at the time of construction. While GPA’s members
operate many sources that are true minor sources, the ability to operate as a synthetic minor
source can often provide regulatory and operational certainty because the binding emissions
limitations established in a synthetic minor permit ensure that a facility will remain a minor
source as changes in demand for gathering lines and associated equipment occur. In addition,
expanding the streamlined FIP to synthetic minor sources will reduce the administrative burden
on both EPA and the regulated community by eliminating the need to prepare, review, and issue
site-specific preconstruction permits for sources seeking to operate as synthetic minor sources.
Further, while a synthetic minor option provides operators with consistency, predictability, and
efficiency, it also provides important environmental benefits by creating an incentive for
operators to reduce emissions below major source thresholds in order to avoid more onerous
requirements associated with site-specific and/or major source PSD permitting, such as long
permit lead times and complicated best available control technology (“BACT”) demonstrations.
Thus, providing an option for streamlined preconstruction review for synthetic minor sources
will provide benefits for operators, for EPA, and for the environment.
Second, providing a streamlined preconstruction review process for synthetic minor sources is
consistent with state permitting programs for the oil and natural gas sector and with EPA’s
precedent for other preconstruction review programs in Indian Country. Most states with
significant oil and natural gas production have implemented general permits, permits by rule, or
other streamlined permitting processes for preconstruction review that apply to both true minor
and synthetic minor sources. Attachment 1 contains a table showing the state-level permit
options commonly used by oil and gas sites. These programs are extremely effective, protect air
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quality, and allow the continued development of oil and natural gas production without the risk
of unnecessary delays caused by preconstruction review. As shown in Attachment 1, the median
time to obtain construction approvals under these state-level permit options is approximately 30
days. In stark contrast, EPA is currently afforded one year after an application for a synthetic
minor permit has been deemed complete to grant or deny the permit. [See 40 CFR §
49.158(b)(7).] Moreover, application of streamlined permitting to synthetic minor sources
reduces the burden on state regulators that would otherwise strain their limited resources. For the
same reasons, expanding the proposed FIP to include synthetic minor sources would ease the
burden imposed on EPA’s permit review staff.
Gas Processors Association (GPA) (0040): [The commenter attached a table on pages 11-14 of
their written comments entitled “Attachment 1: COMPARISON OF COMMONLY USED
STATE LEVEL PERMIT OPTIONS FOR OIL AND GAS SITES”. This table compared fifteen
“permit(s) commonly used by O&G sites” from ten state agencies, their construction approval
timelines, and whether the permit contained federally-enforceable limit options.]
Gas Processors Association (GPA) (0040): EPA has previously used a FIP on the Fort Berthold
Indian Reservation (“FBIR”) to create federally and practicably enforceable synthetic minor
source restrictions such that a site’s potential to emit (“PTE”) does not exceed PSD major source
thresholds. [See 78 FR 17836, 17839-51 (Mar. 22, 2013).] EPA notes in the preamble to the
FBIR FIP the benefits of this approach below:
[P]preconstruction PSD permits are one mechanism available to the EPA to assure that
emissions increases associated with economic development do not threaten the NAAQS.
Under the Federal Tribal NSR rule, sources located on the FBIR may also obtain
synthetic minor NSR permits to limit their emissions below major source levels. Either of
these options would require that the EPA review and issue several hundred air permits to
emissions limitations similar to those required by this FIP. We determined, therefore, that
issuing this FIP, and imposing emission limitations for these sources at one time was a
more efficient and streamlined mechanism than issuing individual permits. We believe
that this is the best way to address the potential harm that these previously unregulated
VOC emissions would create, and ensure that we are not inhibiting the growth of oil and
natural gas due to the permitting process, which could put the Tribe at an economic
disadvantage. Finally, while actual emissions for some sources may be lower than
potential emissions, there are no federally and practicably enforceable emission control
requirements for the affected equipment limiting the potential to emit. This rule imposes
emission limitations that are federally and practicably enforceable. [Id. at 17839
(emphasis added).]
EPA offers no explanation in the proposal as to why it is excluding synthetic minor sources
here.158 Given this precedent and the successful implementation of streamlined permitting
programs for synthetic minor sources at the state and federal level, there is simply no reason to
limit the proposed FIP to true minor sources.
158 See Dillmon v. NTSB, 588 F.3d 1085, 1089-90 (D.C. Cir. 2009) (citing FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800, 1811 (2009)) (“Reasoned decision making … necessarily requires the agency to acknowledge and
provide an adequate explanation for its departure from established precedent.”).
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Furthermore, EPA has several options available to expand the scope of the proposed FIP to
include synthetic minor sources while ensuring that all of the Clean Air Act’s requirements for
synthetic minor sources are met. EPA could look to existing state programs, including the many
examples provided in Attachment 1 that currently administer a streamlined permitting process
for the types of facilities that would be covered under the Proposed FIP. As GPA suggested in its
comments on EPA’s Advance Notice of Proposed Rulemaking, EPA could impose federally
enforceable emissions limits through a self-certification process and/or sending a response letter
to synthetic minor sources confirming authorization under the streamlined program. Both
approaches are very common in states that use streamlined permitting programs. For example,
many oil and gas sites in Texas are authorized under a permit by rule, and the Texas Commission
on Environmental Quality’s (“TCEQ’s”) rules specify federally-enforceable emission limitations
for PBRs. [See 30 TAC §§ 106.4 and 106.6.] In addition, a site can submit a Form APD-CERT
to the TCEQ to self-certify voluntary federally-enforceable emission limitations below any limits
in a rule or permit for that source type. The TCEQ lists several purposes of this self-certification,
including avoiding applicability of state and Federal major source rules, NSR major source
permitting, and Title V major source permitting. Oklahoma offers several General Permits for oil
and gas sources and allows federally-enforceable emission limitations to be established in the
Authorization confirmation letter from the Oklahoma Department of Environmental Quality
(“DEQ”) or by the permittee in a Notice of Modification Form. Arkansas primarily authorizes
compressor stations under a General Air Permit (1868-AGP-000). Sites requesting coverage
under Arkansas’ General Permit provide emissions on a Notice of Intent Form, and emission
limitations are established through a Confirmation Letter from the Arkansas Department of
Environmental Quality (“ADEQ”). [See ADEQ Permit #1868-AGP-000, Section III.3 and
ADEQ Reg. 19.501.]
Gas Processors Association (GPA) (0040): [The commenter attached a table on pages 11-14 of
their written comments entitled “Attachment 1: COMPARISON OF COMMONLY USED
STATE LEVEL PERMIT OPTIONS FOR OIL AND GAS SITES”. This table compared fifteen
“permit(s) commonly used by O&G sites” from ten state agencies, their construction approval
timelines, and whether the permit contained federally-enforceable limit options.]
Based on these examples and EPA’s past practice, we urge EPA to include an option for
operators to self-certify voluntary emission limits in order to construct a synthetic minor source
under the FIP when the rule is finalized. Under such an approach, the operator would be able to
certify emission limits below minor source thresholds and would then be legally bound by such
limits. Because the proposed FIP is based on existing NSPS and NESHAP requirements, we urge
EPA to further streamline the process by allowing such sources to demonstrate compliance with
self-certified emissions limits by referencing existing monitoring, recordkeeping, and reporting
requirements already established in those NSPSs and NESHAPs for these sources.
Gas Processors Association (GPA) (0040): While GPA supports EPA’s efforts to provide a
streamlined process for true minor sources in the oil and natural gas production sector, the
proposed FIP does not go far enough and, unless changes are made, will disadvantage oil and gas
development in Indian Country. As explained above, the vast majority of states with oil and
natural gas resources have streamlined permitting programs that go beyond the scope of the
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proposed FIP by including synthetic minor sources and natural gas processing plants. Because
these state permitting programs offer more flexibility to both oil and natural gas producers,
gatherers, and processors by increasing the types of sources that can qualify for streamlined
preconstruction permitting, most companies would prefer to site their sources on non-tribal lands
that are subject to state permitting instead of the more time-consuming, complicated, and costly
site-specific permitting requirements that will apply to sources that do not qualify for the
proposed FIP.
For example, consider a gathering company that is evaluating two sites for a new compressor
station which will be a synthetic minor source, Site A in Indian Country and Site B in a nearby
state. Since gathering pipelines often span several miles, it is common for a gathering company
to have several siting options for a compressor station. Under the proposed FIP, the permitting
process for Site A would likely take well over a year and the resultant permit conditions would
be unknown in advance, creating equipment design uncertainties. On the other hand, Site B
qualifies for a state-level streamlined permitting approach with known permit conditions and a
prescribed 30-day issuance timeline. Absent other factors, a company would select Site B due to
its efficiency and certainty. Indeed, compressor stations can be conceived, designed, installed,
and put into operation in less than one year. Streamlined state-level permitting programs
accommodate the fast-moving nature of the oil and gas industry, whereas EPA’s proposed
approach would be the limiting factor in starting construction for synthetic minor sources. This
puts tribes at a significant economic disadvantage in attracting new investments in the oil and
natural gas sector.
Therefore, it is imperative that EPA level the playing field between tribal and non-tribal land by
adopting streamlined permitting programs that are similar in scope to those in competing states.
As discussed above, EPA must include both synthetic minor sources and natural gas processing
plants in its streamlined preconstruction review program. Indeed, EPA arguably has an
obligation to do so here. As a trustee for tribal resources, the federal government has a fiduciary
duty to protect and promote tribal resources.159 A permitting program that creates systemic
barriers to the development of oil and natural gas resources in Indian Country is inconsistent
with that mandate. Thus, EPA has an obligation to develop regulatory programs for Indian
Country that allow tribes to compete with other landowners with respect to oil and gas
development. To ensure the competitiveness of oil and gas production in Indian Country, EPA
must expand the FIP to include both synthetic minor sources and gas processing plants.
Enerplus (0041): The proposed FIP only covers true minor sources and does not establish any
method to limit potential emissions for synthetic minor sources. Enerplus respectfully requests
the EPA amend the proposed FIP to allow operators the option of requesting synthetic minor
status during registration of facilities. The operator would request federal enforceability for
limitations on production, throughput, or hours of operation for designated emission units.
Operators would request synthetic minor status, identify the emission unit, identify the means of
limitation (e.g. production limitation), and provide the numerical limitation. Operators would
159 Two Shields v. United States, 119 Fed. Cl. 762 (Ct. Fed. Claims 2015) (“The BIA has a fiduciary duty to ensure
that the Indians’ mineral resources ‘will be developed in a manner that maximizes their best economic interests and
minimizes any adverse environmental impacts or cultural impacts resulting from such development’” (quoting 25
CFR § 212.1(a))).
97
then have an obligation to create records of the chosen limitation on a monthly basis and provide
those records to EPA upon request.
By example, an operator could designate a wellsite facility in its application to EPA as
requesting synthetic minor status with a limitation on annual oil production. Operators would be
required to designate the numeric annual oil production limitation and track oil production on a
monthly basis. The oil production limitation would then become federally enforceable.
This proposal provides a streamlined approach to limiting EPA's burden to process site specific
permits through a practically enforceable means.
QEP Resources, Inc. (0038): EPA proposes to incorporate the definitions of "Potential to emit"
and "Enforceable as a Practical matter" from 40 CFR § 49.152 into the National FIP. [See 40
CFR § 49.102 as proposed in 80 FR 56573.] 40 CFR § 49.152 defines "Potential to emit" as:
the maximum capacity of a source to emit a pollutant under its physical and operational
design. Any physical or operational limitation on the capacity of the source to emit a
pollutant, including air pollution control equipment and restrictions on hours of operation
or on the type or amount of material combusted, stored or processed, shall be treated as
part of its design if the limitation or the effect it would have on emissions is enforceable
as a practical matter. Secondary emissions, as defined at§ 52.21(b)(18) of this chapter, do
not count in determining the potential to emit of a source.
Section 49.152 further defines "Enforceable as a Practical Matter" (used in the definition above)
to mean enforceable by the "Reviewing Authority"- or, in other words, EPA or a tribe delegated
to implement the FIP.
EPA's definition of "Enforceable as a Practical Matter" in 40 CFR § 49.152 conflicts with the
D.C. Court ruling in National Mining Ass'n v. EPA, 59 F.3d 1351(D.C. Cir. 1995). It is
important to be able to account for other enforceable limits because (1) EPA source-specific
permitting for new sources and modifications can be burdensome and time-consuming; (2) NSPS
and NESHAPs are not sufficient to limit PTE for some sources (as discussed below) and (3) EPA
has not created synthetic minor limits in this FIP nor created a mechanism in this FIP to obtain
limits in a streamlined manner. Other limits include limits imposed by the BLM or a Tribal
authority. EPA's definition of "Enforceable as a Practical Matter" would not allow consideration
of those limits. The D.C. court ruled that EPA must consider those other enforceable limits.
Accordingly, EPA must revise 40 CFR § 49.152 "Enforceable as a practical matter" by adding
the bold words to read:
Enforceable as a practical matter means that an emission limitation or other standard is
both legally and practicably enforceable as follows:
(1) An emission limitation or other standard is legally enforceable if a government
authority, federal or tribal, has the right to enforce it.
Western Energy Alliance (0045): EPA Must Allow Other Federal Standards and Tribal
Standards to Limit PTE - The National FIP states at 40 CFR § 49.102 Definitions: “As used in
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§§ 49.101 through 49.105, all terms not defined herein shall have the meaning given them in the
Clean Air Act, in subpart A, and subpart OOOOa of 40 CFR part 60, in the Prevention of
Significant Deterioration regulations at 40 CFR 52.21, or in the Federal Minor NSR Program in
Indian Country at 40 CFR 49.152.” The Alliance understands this incorporation to mean that
EPA proposes to include the definitions of “Potential to emit” and “Enforceable as a Practical
Matter” in 40 CFR 49.152 into the National FIP. 40 CFR Section 49.152 defines “Potential to
emit” as:
the maximum capacity of a source to emit a pollutant under its physical and operational
design. Any physical or operational limitation on the capacity of the source to emit a
pollutant, including air pollution control equipment and restrictions on hours of operation
or on the type or amount of material combusted, stored or processed, shall be treated as
part of its design if the limitation or the effect it would have on emissions is enforceable
as a practical matter. Secondary emissions, as defined at § 52.21(b)(18) of this chapter,
do not count in determining the potential to emit of a source.
The definition above refers to limitations that are “enforceable as a practical matter.” Section
49.152 separately defines “Enforceable as a Practical Matter” to mean enforceable by the
“Reviewing Authority” or, in other words, EPA or a tribe delegated to implement the FIP. EPA’s
definition of “Enforceable as a Practical Matter” in Section 49.152 conflicts with the D.C. Court
ruling in National Mining Ass'n v. EPA, 59 F.3d 1351(D.C. Cir. 1995). It is important to be able
to account for other enforceable limits because (1) EPA source-specific permitting for new
sources and modifications can be burdensome and time-consuming; (2) NSPS and NESHAPs
may not limit PTE in some instances (as discussed below) and (3) EPA has not created synthetic
minor limits in this FIP nor created a mechanism in this FIP to obtain limits in a streamlined
manner. Other limits include limits imposed by the BLM or a Tribal authority. EPA’s definition
of “Enforceable as a Practical Matter” would not allow consideration of those limits. The D.C.
court ruled that EPA must consider those other enforceable limits.
Accordingly, EPA should revise 40 CFR 49.152 “Enforceable as a practical matter” to read:
Enforceable as a practical matter means that an emission limitation or other standard is both
legally and practicably enforceable as follows:
(1) An emission limitation or other standard is legally enforceable if a government
authority, federal or tribal, has the right to enforce it.
Western Energy Alliance (0045): The National FIP Should Fill Existing Gaps in the Permitting
Program for True Minor and Synthetic Minor Sources in Indian Country - The FIP as proposed
does not provide any means for owners and operators to voluntarily obtain enforceable emission
limitations on potential to emit (PTE). Owners and operators of stationary sources located within
Indian country will be forced to seek such limitations via the existing synthetic minor permitting
process. Furthermore, a number of emission sources common in the oil and natural gas
production sector are not subject to the six Federal standards adopted in the National FIP and
therefore, there is no mechanism to obtain federally enforceable emission limits for such sources
outside of site-specific permitting or the synthetic minor permitting process. Please note the
following examples:
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• Storage vessels not subject to NSPS
• Flares burning separator/treater gas (no NSPS/NESHAP applies to separators) that,
without enforceable controls, may exceed major source thresholds in and of itself
• Heaters not located at major sources of HAP and not subject to NESHAP DDDDD
• Engines grandfathered from NSPS and not subject to control requirements under
NESHAP ZZZZ
• Area source glycol dehydration units not subject to controls under NESHAP HH
• Pneumatic pumps grandfathered from the forthcoming NSPS OOOOa
EPA has set precedent with policies to develop general permits, permits by rule and FIPs for
common types of emissions units and minor sources to streamline the permitting process. Take,
for example, the Fort Berthold Indian Reservation (FBIR) FIP. [78 FR 17836 (Mar. 22, 2013).]
EPA promulgated a reservation-specific FIP “to establish enforceable control requirements for
reducing VOC emissions from oil and natural gas production activities on the FBIR in North
Dakota.” [Id. at 17838.]
The FBIR FIP interim final rule provides a helpful explanation for the FBIR FIP’s utility and
value:
“[O]wners and operators of oil and natural gas operations producing from the Bakken
Pool on the FBIR are potentially subject to the Federal preconstruction permitting
requirements found in the Federal rules at 40 CFR 52.21 (Prevention of Significant
Deterioration of Air Quality), and 40 CFR 49.151 through 49.161 (Federal Tribal NSR
Rule). However, on the FBIR only NSPS OOOO and NESHAP HH provide legally and
practicably enforceable VOC control requirements outside of the Federal pre-
construction permitting requirements. Further, NSPS OOOO only applies to new and
modified facilities and only to the oil storage tanks being utilized in the Bakken Pool
operations. Thus, most owners and operators of oil and natural gas activities producing in
the Bakken Pool must obtain preconstruction permits before production can begin, or if
they are not obligated to obtain a permit face no control obligations whatsoever.” [77 FR
48878, 48882 (Aug. 15, 2012).]
Owners and operators of production facilities within areas of Indian country outside of the FBIR
face a similar regulatory gap. Only NSPS OOOO and NESHAP HH provide legally and
practicably enforceable VOC control requirements outside of the Federal pre-construction
permitting requirements. Similarly, only certain NSPS and NESHAP standards provide legally
and practicably enforceable control requirements for regulated NSR pollutants other than VOC
that are or may be emitted from stationary internal combustion engines and other sources
commonly used within the industry.
As explained in the preamble of the National FIP, “The FBIR FIP does provide legal and
practical enforceability for the use of VOC emission controls…” 80 FR 56567. These FBIR FIP
control mechanisms provide operators with a predictable and reasonable timeline to permit new
development. We request the option for these same types of legal and practically enforceable
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emission controls in the National FIP. Accordingly, we propose that EPA consider the following
provisions:
Insert new section 49.106 to the National FIP providing:
(a) Sources not subject to NSPS or NESHAPs may elect to comply with a NSPS or
NESHAP under this FIP as a mechanism to establish enforceable conditions on the
source’s potential to emit. Once the source elects to be subject to the NSPS or NESHAP,
the NSPS or NESHAP are enforceable against the source under this FIP.
(b)(i) Sources may elect to be subject to one or more facility-wide emission limits listed
below.
a. 249 tons per year of any NSR regulated pollutant in an attainment area;
b. 99 tons per year of any NSR regulated pollutant in any nonattainment area;
c. 24 tons per year of total hazardous air pollutants;
d. 9 tons per year of any single hazardous air pollutant;
e. 99 tons per year of any regulated pollutant;
(ii) The facility-wide emission limits are 12-month rolling limits. Once a source elects
coverage under this paragraph, the source must demonstrate compliance every month
based on emissions of the prior 12 months.
(iii) Sources subject to this paragraph shall demonstrate compliance and determine
emissions based on the monitoring and recordkeeping dictated in any NSPS or NESHAP
for the types of equipment covered under the facility-wide emissions limit.
(iv) Sources subject to this paragraph shall monitor emissions and emissions-related data
and keep records consistent with NSPS or NESHAP monitoring and recordkeeping for
the types of equipment covered by the emissions limit for the purposes of compliance
with this paragraph, even if such equipment is not subject to the NSPS or NESHAP.
The facility-wide emission limit proposed here is the preference for many operators.
Additionally, the Alliance encourages EPA to offer flexibility to operators so they can select an
approach best suited to their individual needs to fill the gaps identified in this section. Thus, the
Alliance strongly encourages EPA to offer a menu of options to operators in order to ensure that
the FIP contains robust yet flexible control measures, rather than a prescriptive, one-size-fits-all
approach.
For some operators, limitations based on throughput, production, or hours of operations may be a
useful approach. The Alliance suggests that in addition to the facility-wide emission limits
proposed above, EPA also allow operators the opportunity to request synthetic minor status
during registration of facilities in the form of requesting federal enforceability for limitations on
production, throughput, or hours of operation for designated emission units. Operators would
request synthetic minor status, identify the emission unit, identify the means of limitation (e.g.
production limitation), and provide the numerical limitation. Operators would then have an
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obligation to maintain records of the chosen limitation on a monthly basis and provide those
records to EPA upon request.
By example, an operator could designate a well site facility in its registration to EPA as
requesting synthetic minor status with a limitation on annual oil production. The operator would
be required to designate the numeric annual oil production limitation and track oil production on
a monthly basis. The oil production limitation would then become federally enforceable.
Without emission limits or limits on production, throughput and/or hours of operation within the
National FIP to serve to limit the PTE for synthetic minor sources and synthetic minor
modifications, an overwhelming number of operators in Indian country will have to obtain site-
specific permits for future development. As a result, EPA will receive an overwhelming number
of individual permit applications that will create an undue burden on the Agency and its
resources. Furthermore, development efforts in Indian country will experience lengthy permitting
delays and interruption in new construction, thereby disadvantaging production from Indian
country compared to state and fee lands.
Western Energy Alliance (0045): Minor Modifications at Major Sources Need the FIP
Streamlined Process - The FIP should be available also for minor modifications at major sources
and modifications at synthetic minor sources. EPA does not explain why the FIP is limited only
to new and modified true minor sources. Minor modifications at major sources can be of the
same size and type as modifications at minor sources. Similarly, modifications at synthetic minor
sources can be the same as a modification at a true minor source. EPA unreasonably limits the
FIP to modifications at true minor sources. Major sources and synthetic minors that might have
already undergone the burden of source-specific permitting should not continue to be
disadvantaged with source-specific permitting for minor modifications. EPA must revise
language throughout the rule that refers modifications to true minor sources by removing “true”
and allow the FIP to be used for modifications at any existing minor source and allowing the FIP
to be used for minor modifications at any existing major source.
EPA must also revise paragraph A under the applicability section; 40 CFR §49.153(a)(1)(ii)(A)
should state:
For the pollutant being evaluated, determine whether your proposed modification is
subject to review under the applicable major NSR program. If the modification at your
existing major source does not qualify as a major modification under that program based
on the actual-to-projected-actual test, it is considered a minor modification and is subject
to the minor NSR program requirements, if the net emissions increase from the actual-to-
projected-actual test is equal to or exceeds the minor NSR threshold listed in Table 1 of
this section, except that modifications at oil and natural gas production sources shall
instead comply with the requirements of the Federal Implementation Plan at §§ 49.101 to
49.105, unless you opt-out of the Federal Implementation Plan pursuant to § 49.101(b)(2)
in which case you are subject to the preconstruction requirements of this program for that
pollutant or are required by the EPA to obtain a minor source permit pursuant to §
49.101(b)(3). For a modification at your existing minor source, go to Step 2 (paragraph
(a)(1)(ii)(B) of this section).
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American Petroleum Institute (API) (0046): Issue 2 – Minor Modifications at Major Sources
The FIP should be available for minor modifications at major sources as it is allowed in the
general minor NSR rule. [49 CFR 49.151 et al.] Minor modifications at major sources can be of
the same size and type as modifications at minor sources and should be afforded the same
flexibilities as their true minor source counterparts. Major sources that might have already
undergone the burden of source-specific permitting should not continue to be disadvantaged with
source-specific permitting for minor modifications.
In the proposed rule, EPA refers to “minor modifications at true minor sources”; however, EPA
has not defined “minor modification” for true minor sources. EPA should not use the term
“minor modification” in reference to minor sources as all modifications at a minor source fall
under minor NSR, unless the modification qualifies as a major source by itself.
Recommendation 2 – Minor Modifications at Major Sources
API recommends replacing all references in the proposed O&G FIP for “minor modifications at
existing true minor oil and natural gas sources” with “minor modifications at existing oil and
natural gas sources”.
EPA should revise paragraph A under section 40 CFR §49.153(a)(1)(ii)(A) to include the
language in red below.
For the pollutant being evaluated, determine whether your proposed modification is subject to
review under the applicable major NSR program. If the modification at your existing major
source does not qualify as a major modification under that program based on the actual-to-
projected-actual test, it is considered a minor modification and is subject to the minor NSR
program requirements, if the net emissions increase from the actual-to-projected-actual test is
equal to or exceeds the minor NSR threshold listed in Table 1 of this section, except that
modifications at oil and natural gas production sources shall instead comply with the
requirements of the Federal Implementation Plan at §§ 49.101 to 49.105, unless you opt-out of
the Federal Implementation Plan pursuant to § 49.101(b)(2) in which case you are subject to the
preconstruction requirements of this program for that pollutant or are required by the EPA to
obtain a minor source permit pursuant to § 49.101(b)(3). For a modification at your existing
minor source, go to Step 2 (paragraph (a)(1)(ii)(B) of this section).
American Petroleum Institute (API) (0046): While the O&G FIP acknowledges several
practical considerations for permitting oil and natural gas sources, the proposed program falls
short of many of the streamlining permitting objectives mentioned above that are found in
corresponding state programs including:
• The proposed O&G FIP lacks any streamlined mechanism to obtain voluntary
restrictions to limit potential to emit (PTE) and obtain synthetic minor status for
either Title V, major NSR, and/or hazardous air pollutants (HAP).
Proposed Language
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Owners and operators of new true minor oil and natural gas sources or minor
modifications at existing true minor oil and natural gas sources as determined pursuant
to 40 CFR 49.153(a) that meet the criteria specified in paragraphs (b)(1)(i) through
(b)(1)(v) of this section, shall comply with the requirements of §§49.104 and 49.105,
unless the owner or operator obtains a site-specific permit as specified in paragraph
(b)(2) or (b)(3) of this paragraph [§49.101(b)(1)(iii)].
…
(iii) The oil and natural gas production facility is a new true minor source or minor
modification of an existing true minor source as determined under §49.153;
Issue
The proposed O&G FIP does not provide a streamlined mechanism to obtain synthetic minor
permits for oil and natural gas sources. Oil and natural gas sources appear to only be able to
obtain synthetic minor permits through the complicated and time-consuming case-by-case
permitting process established in §49.158. The delays associated with case-by-case permitting
are a significant obstacle to projects involving construction or modification, as well as a
significant drain on agency resources.
The absence of a streamlining mechanism would place oil and natural gas development in Indian
Country at a distinct disadvantage to development on adjacent areas under state authority, which
include streamlined permitting programs for oil and natural gas sources. This disproportionately
disadvantages oil and gas sources. EPA provides streamlined permitting mechanisms for Bundle
1 sources such as gasoline dispensing in both attainment and nonattainment areas (see §49.164).
Despite API driving the need for EPA to establish streamlined permitting mechanisms for
obtaining synthetic minor status, no mechanism was provided for oil and gas sources while
mechanisms were created for other sources.
The O&G FIP should enable the owner/operator of an oil and gas source to voluntarily (and at
the owner/operator’s sole discretion) certify emission rates (including necessary emission
calculations and representations) to EPA (or a delegated permitting authority) for the purposes of
obtaining legally and practically enforceable synthetic minor emissions limitations for both
criteria pollutants and HAPs. Such limitations should be effective under all programs under the
CAA with emissions-based applicability, including the prevention of significant deterioration
(“PSD”) permitting program, the Title V operating permit program, NSPS rules, and NESHAP
requirements. The efficacy of such an approach has been demonstrated in numerous states with
oil and gas development such as Texas, Colorado, Wyoming, Ohio, Utah, and Oklahoma.
Recommendation
API proposes to create a new section, 49 CFR §49.106, in the O&G FIP with pre-defined
emission standards and associated monitoring, recordkeeping, and reporting (MRR)
requirements to obtain synthetic minor status. Similar to the concept of the proposed O&G FIP
registration process, operators would be able to voluntarily elect to comply with emission
standards as an alternative to applying for a source-specific synthetic minor permit under
§49.158. The emission standards would include MRR to ensure practical enforceability and
similar to the FBIR apply upon startup for those sources electing to use the streamlined synthetic
minor permitting option.
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§49.106
(a) Sources not subject to NSPS or NESHAPs may elect to comply with a NSPS or
NESHAP and make the NSPS or NESHAP enforceable conditions on the source’s
potential to emit. Once the source elects to be subject to the NSPS or NESHAP, the
NSPS or NESHAP are enforceable against the source under this FIP.
(b) (i) Sources may elect to be subject to one or more facility-wide emission limits listed
below.
a. 249 tons per year of any criteria pollutant in attainment areas (NAAQS
pollutant or precursor);
b. 99 tons per year of any criteria pollutant in any marginal or moderate
nonattainment area (NAAQS pollutant or precursor);
c. 24 tons per year of total hazardous air pollutants;
d. 9 tons per year of any single hazardous air pollutant;
e. 99 tons per year of any regulated NSR pollutant;
(ii) The facility-wide emission limits are 12-month rolling limits. Once a source elects
coverage under this paragraph, the source must demonstrate compliance every
month based on calculated emissions of the prior 12 months.
(iii) Sources subject to this paragraph shall demonstrate compliance and
determine emissions based on the monitoring and recordkeeping dictated in any
NSPS or NESHAP for the types of equipment covered under the facility-wide
emissions limit.
(iv) Sources subject to this paragraph shall monitor emissions and emissions-
related data and keep records consistent with NSPS or NESHAP monitoring and
recordkeeping for the types of equipment covered by the emissions limit for the
purposes of compliance with this paragraph, even if such equipment is not subject
to the NSPS or NESHAP.
Part 2 of the 2-part registration process will provide a box allowing the operator to affirmatively
register the source as opting-in to the synthetic minor FIP provisions in §49.106 as well as
identifying the relevant NSPS and/or NESHAP monitoring and recordkeeping the facility will
use to verify compliance with the emission caps identified under Option (b).
SLR International Corporation and Ultra Resources, Inc. (0051): The National FIP Should Fill
Existing Gaps in the Permitting Program for True Minor and Synthetic Minor Sources in Indian
Country - EPA should provide a streamlined mechanism for owners and operators to voluntarily
obtain limitations on potential to emit volatile organic compounds (VOC), other regulated NSR
pollutants and hazardous air pollutants (HAP) that are legally and practically enforceable in
order to avoid major source permitting (PSD and Title V) and major source National Emission
Standards for Hazardous Air Pollutants for Source Categories (NESHAP).
The current Federal Minor New Source Review Program in Indian Country (“Tribal Minor NSR
Program”), at 40 CFR §49.158, provides a means for owners and operators to obtain legally and
practically enforceable limitations through the synthetic minor permitting process, but that
process in unworkable for the oil and natural gas industry, given the difficulty in obtaining a pre-
construction permit in a timely manner after submittal of a complete application.
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The FIP, as proposed at 40 CFR §§49.101-49.105, does not provide any means for owners and
operators to voluntarily obtain enforceable emission limitations on potential to emit (PTE).
Owners and operators of stationary sources located within Indian Country will be forced to seek
such limitations via the existing synthetic minor permitting process, resulting in unnecessary
delays and administrative burden to EPA permitting authorities. The proposed FIP does not fill
this important gap in the existing Tribal Minor NSR Program.
EPA states that the FIP would be used instead of site-specific permits to fulfill the EPA's
obligation under the Tribal Minor NSR rule to issue minor NSR preconstruction permits. Under
section 302(y) of the CAA, the term “Federal implementation plan” means
“. . . a plan (or portion thereof) promulgated by the Administrator to fill all or a portion of
a gap or otherwise correct all or a portion of an inadequacy in a SIP, and which includes
enforceable emission limitations or other control measures, means or techniques
(including economic incentives, such as marketable permits or auctions of emission
allowances), and provides for attainment of the relevant national ambient air quality
standard.” [80 FR 56562.]
EPA has interpreted the reference to a “gap” in a SIP to include circumstances, for example in
areas of Indian Country, where a SIP does not apply and the relevant tribe has not implemented
an EPA-approved plan. In these circumstances, CAA §§ 301(a) and 301(d)(4) and 40 CFR
49.11(a) authorize the EPA to promulgate FIPs as are necessary or appropriate to protect air
quality.” [80 FR 56562.]
EPA states that the proposed FIP would
“adopt legally and practicably enforceable requirements to control and reduce air
emissions from oil and natural gas production.” EPA has determined that “it is necessary
or appropriate to exercise our discretionary authority under sections 301(a) and 301(d)(4)
of the CAA and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing regulatory
gap under the CAA with respect to oil and natural gas production operations in areas
covered by the Federal Indian Country Minor NSR rule where there is no EPA-approved
plan in place.” [80 FR 56562.]
A regulatory gap does currently exist in the Tribal Minor NSR rule that EPA has not addressed:
There is currently no mechanism for owners and operators to voluntarily establish legally and
practicably enforceable control requirements to reduce emissions of regulated NSR pollutants in
order to avoid regulation under major source NSR permitting or other federal Clean Air Act
programs. The FIP, as proposed, would not provide such a mechanism.
The proposed FIP adopts six federal rules that are independently applicable and enforceable.
EPA notes that “[t]his FIP does not change the applicability of the specified standards, nor does
it relieve sources subject to the standards from complying with them, independently of this FIP.”
[80 FR 56563.] Adoption of federal rules that are limited in scope and applicability to oil and gas
production sources does not fill the regulatory gap described above. Moreover, those sources that
106
are subject to the adopted standards would be obligated to comply with those standards, and the
emission limitations thereof would inherently be legally and practicably enforceable, whether or
not a FIP is in place.
Many emitting units are not and will not be subject to any of the six adopted federal rules,
including for example:
Storage vessels that are “existing facilities” (defined in §60.2) or not otherwise subject to
NSPS Subpart OOOO or the forthcoming Subpart OOOOa;
Nonemergency flares burning separator/treater gas (no NSPS/NESHAP applies to
separators) that, without enforceable controls, may exceed major source thresholds in and
of itself;
Process heaters located at area sources of HAP that are not subject to NESHAP DDDDD
(the vast majority of sites in the oil and gas sector are not major sources for purposes of
NESHAP DDDDD);
Stationary engines that are “existing facilities” for purposes of NSPS (defined in §60.2)
and not subject to control requirements for existing sources under NESHAP ZZZZ;
Area source triethylene glycol dehydration units not subject to controls under NESHAP
HH; and
Pneumatic pumps grandfathered from the forthcoming NSPS OOOOa.
To fill this important regulatory gap and establish a mechanism for owners and operators to
obtain legally and practicably enforceable control requirements to reduce emissions of regulated
NSR pollutants, EPA should establish voluntary standards for controlling emissions from certain
oil and gas production sources not already subject to the adopted FIP standards (as stated above,
sources subject to an NSPS or NESHAP adopted by the FIP would be required to comply with
those standards regardless). A suite of standards that owners and operators could opt for could be
provided in a General Permit (GP) pursuant to §49.156 or incorporated through other means as a
voluntary option. In addition to being voluntary, any oil and gas-specific mechanism must meet
four important criteria. First, an initial period after first production must be provided to allow
operators to quantify production rates and surface equipment needs. For example, a registration
application could be required within 90 days after first production. Second, qualifying facilities
should be able to operate in accordance with terms and conditions of the GP or other provisions
without delay. Third, the limitations on PTE should be legally and practically enforceable.
Finally, any compliance provisions, including inspection, monitoring, recordkeeping and
reporting, should effectively demonstrate proper operation of vapor collection and controls
systems, but not be so burdensome so as to present a disincentive for owners and operators to
select the streamlined option.
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EPA stated in the preamble:
“[b]oth a general permit and a permit by rule provide a more streamlined approach for
authorizing construction and modification of a source compared to site-specific
permitting. A FIP, however, has the advantage of not requiring a source to initiate
advance review and obtain approval of coverage from the Reviewing Authority before
beginning construction (as would a general permit), and it would reduce the resource
burden on reviewing authorities associated with processing the potentially large volume
of requests from true minor sources in the oil and natural gas production segment for
coverage under a general permit. So, from those standpoints a FIP is preferable to a
general permit.” [80 FR 56568.]
Owners and operators of production facilities within areas of Indian Country outside of the FBIR
face a similar regulatory gap. Only NSPS OOOO and NESHAP HH provide legally and
practicably enforceable VOC control requirements outside of the Federal pre-construction
permitting requirements. Similarly, only certain NSPS and NESHAP standards provide legally
and practicably enforceable control requirements for regulated NSR pollutants other than VOC
that are or may be emitted from stationary internal combustion engines and other sources
commonly used within the industry.
The four NSPS rules that would be adopted by the FIP, only apply to certain new, reconstructed
or modified facilities. Existing facilities are not regulated. EPA has stated they “believe that the
most appropriate means for addressing impacts from existing sources is through area- or
reservation-specific FIPs and not through this proposed, national FIP.” [80 FR 56570.]
However, by providing a voluntary mechanism (GP or other means) now to control those sources
not subject to a NSPS or NESHAP under the FIP would close a potential regulatory gap for the
time between promulgation of this proposed FIP and a future area- or reservation-specific FIP.
NESHAP Subpart DDDDD only applies to certain boilers and process heaters located at major
sources of HAP. Subpart DDDDD is not widely applicable to the upstream oil and gas industry,
as the vast majority of sites are area source of HAP for purposes of the rule – see definition of
“major source” at 40 CFR §63.7575. Subpart HH does not require controls for area source
triethylene glycol dehydration units.
EPA should develop source-specific oil and gas GPs or other mechanism(s) that owners and
operators can opt for to limit emissions from oil and gas production operations not otherwise
regulated by CAA standards. Separate GPs or other mechanism(s) could for example be
developed for: Tanks and tank batteries; glycol dehydration unit process vents; flaring gas from
separators and treaters, stationary internal combustion engines; and other sources. The standards
and requirements for reducing VOC emissions could be similar in nature to those in the FBIR
FIP. For stationary spark-ignition engines that are “existing facilities” for purposes of NSPS, the
control standards could mirror those in NSPS JJJJ for the older tier engines.
We urge EPA to fill an important gap in the Tribal Minor NSR Program by providing a
streamlined mechanism for owners and operators of sources within Indian Country to voluntarily
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obtain limitations that are legally and practically enforceable in order to avoid major source
permitting (PSD and Title V), NESHAP applicability and NSPS OOOO/OOOOa regulation for
storage vessels.
Anadarko Petroleum Corporation (0058): Finally, for the Federal New Source Review on
Indian Country: As written, this particular rule has no utility, will not allow for a
streamlined permitting mechanism for Utah, in which we operate, in the tribal area
shale, due to the inability to use the federal implementation process for synthetic
minors and in nonattainment areas or areas that are anticipated to be nonattainment.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #26: Several commenters (0039, 0040, 0045, 0046, 0051, 0058) requested that the
EPA provide a mechanism for obtaining synthetic minor permits under the FIP. One commenter
noted that there are a number of emission units common at oil and natural gas facilities that are
not subject to the six federal regulations included in the proposed FIP, and that, therefore, would
not be eligible for federally enforceable limits that are available for units covered under the six
other rules. The commenter stated that unless such provisions were included, an overwhelming
number of operators in Indian country will have to obtain source-specific permits. One
commenter noted that most states with significant oil and natural gas production have
streamlined permitting mechanisms (e.g., general permits or permits by rule) in place for
synthetic minor sources, as does the Fort Berthold Indian Reservation FIP. Another commenter
noted that this would disadvantage oil and natural gas development on tribal lands because
companies may prefer to locate where streamlined synthetic minor permitting options are
available. It was also suggested that other limits, such as those imposed by tribal authorities or
the BLM, be considered “enforceable as a practical matter” when considering the PTE and
permit level. One commenter suggested insertion of the following language to allow for federally
enforceable limits for emission units not subject to the six other rules:
“(a) Sources not subject to NSPS or NESHAPs may elect to comply with a NSPS or
NESHAP under this FIP as a mechanism to establish enforceable conditions on the
source’s potential to emit. Once the source elects to be subject to the NSPS or NESHAP,
the NSPS or NESHAP are enforceable against the source under this FIP.
(b)(i) Sources may elect to be subject to one or more facility-wide emission limits listed
below.
a. 249 tons per year of any NSR regulated pollutant in an attainment area;
b. 99 tons per year of any NSR regulated pollutant in any nonattainment area;
c. 24 tons per year of total hazardous air pollutants;
d. 9 tons per year of any single hazardous air pollutant;
e. 99 tons per year of any regulated pollutant;
(ii) The facility-wide emission limits are 12-month rolling limits. Once a source elects
coverage under this paragraph, the source must demonstrate compliance every month
based on emissions of the prior 12 months.
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(iii) Sources subject to this paragraph shall demonstrate compliance and determine
emissions based on the monitoring and recordkeeping dictated in any NSPS or NESHAP
for the types of equipment covered under the facility-wide emissions limit.
(iv) Sources subject to this paragraph shall monitor emissions and emissions-related
data and keep records consistent with NSPS or NESHAP monitoring and recordkeeping
for the types of equipment covered by the emissions limit for the purposes of compliance
with this paragraph, even if such equipment is not subject to the NSPS or NESHAP.”
The commenter suggested that the EPA allow for flexibility in synthetic minor limits in terms of
production, throughput, or hours of operation. One commenter suggested that the EPA provide a
general permit, or separate general permits for different unit types, pursuant to §49.156 with a
suite of standards that would allow for federally enforceable limits on units not subject to the six
other rules included in the proposed FIP. Several commenters suggested that self-certification
could be included in provisions allowing for synthetic minor limits, and that this would reduce
the burden on the EPA to have to issue synthetic minor limits under a source-specific permit.
Response #26: The current Federal Indian Country Minor NSR rule only allows the permitting of
synthetic minor sources on a source-specific basis. The EPA’s review is necessary to establish
synthetic minor limits because without the verification that the required controls and associated
compliance provisions will accomplish their objective, the source is a major source. Due to the
streamlined nature of the oil and natural gas FIP, such review is not part of the FIP’s process,
which only requires source registration. Synthetic minor sources are more appropriately
permitted under source-specific permits as they provide an opportunity for case-specific,
Reviewing Authority evaluation.
Moreover, the EPA’s Reviewing Authorities in our Regional Offices have seen no evidence of a
high volume of requests for synthetic minor permits from oil and natural gas sources. Nor did
commenters provide information on the volume of synthetic minor status requests to support the
need for a synthetic minor option. Sources subject to the FIP are free to seek a source-specific
sythetic minor permit pursuant to §49.158.
No changes will be made as a result of this comment.
Comment #27: Several commenters (0038, 0039, 0045, 0046) requested that the EPA provide a
mechanism under the FIP to allow for construction of minor modifications at major sources, as
well as modifications at synthetic minor sources. One commenter noted that modifications
occurring at major sources may be of the same type and size as a modification at a true minor
source, yet these situations would be treated differently under the proposed FIP as they would
require time-consuming source-specific permits. One commenter noted that the EPA should not
use the term “minor modifications at true minor sources” in the rule because all modifications at
a true minor source are covered under minor NSR. One commenter requested that the EPA
replace references to “minor modifications at existing true minor oil and natural gas sources”
with “minor modifications at existing oil and natural gas sources.” In addition, the commenter
requested that the FIP allow for minor modifications at major sources as such modifications are
allowed under the Federal Indian Country Minor NSR rule (§49.151). The proposed verbiage
revisions would reflect that such modification at major sources were covered under the FIP.
110
Response #27: The July 2011 Federal Indian Country Minor NSR rule provided for the
streamlining of the permitting of true minor sources through the use of general permits (and
eventually permits by rule), with the permitting of minor modifications at major sources
requiring source-specific permitting. As indicated above in the discussion of the general permits
and permits by rule that the EPA has already issued under the Federal Indian Country Minor
NSR rule, this FIP is not a permitting option available for minor modifications at major sources.
Major sources are more complicated than minor sources, and modifications at major sources are
likely to be as well. Such sources require the in-depth review of source-specific permits. By
streamlining less significant actions (i.e., true minor sources), we are freeing up resources for the
EPA to address actions at the larger, more complex sources. As this FIP is limited to true minor
sources (see response to comments above), the suggested change is not necessary and no change
will be made as a result of this comment.
Comment #28: Two commenters (0038, 0045) requested that the EPA amend the Federal Indian
Country Minor NSR rule to expand the definition of enforceability to allow limits to be
considered “enforceable as a practical matter” to mean that a limit or standard is legally and
praticably enforceable if a government authority, federal or tribal, has the right to enforce it. In
particular, the commenter suggested that such limits could be imposed by the BLM or a tribal
authority.
Response #28: The definition of “enforceable as a practical matter” in §49.152 states that an
emission limitation or other standard is legally enforceable if the Reviewing Authority has the
right to enforce it. Under this FIP, the EPA is the reviewing authority. Therefore, limits or other
standards that are not enforceable by the EPA cannot be considered and no change will be made
to the definition as a result of this comment.
4.2 Nonattainment Areas
QEP Resources, Inc. (0038): As proposed, the National FIP does not cover nonattainment areas.
"It [the FIP] would not apply to new and modified true minor sources that are located or
expanding in referenced areas of Indian country designated nonattainment." [80 FR 56557.]
Further, EPA fails to provide a transition for when an area goes from an attainment or
unclassified designation to a nonattainment designation.
Given the recently lowered ozone standard, this scenario is likely to play out in several areas of
Indian country, most notably the Uinta Basin. Once a nonattainment designation is made, the
only apparent registration/permitting mechanism is site-specific permitting for all minor sources
of emissions.
Moreover, the CAA does not mandate any attainment planning for areas designated marginal
nonattainment. Even for areas designated moderate nonattainment, attainment plans are not due
until three years after the official designation. During this delay associated with any area-specific
minor NSR nonattainment program, the source-specific permitting burden will increase for both
major sources and minor sources, as outline below.
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As stated by EPA itself, it is not viable for EPA to deny coverage of this FIP for nonattainment
areas "due to our inability to process hundreds of true minor source permits in an acceptable
timeframe." [80 FR 56568.] For example, note EPA Region 8's receipt of over 6,000 oil and gas
minor source registrations to date. In the other minor NSR streamlined permitting rules for
Bundle 1, EPA included provisions that would allow continued use of streamlined permitting in
nonattainment areas. [See 80 FR 25068 (May 1, 2015).] EPA has provided no nonattainment
options for oil and gas sources. Streamlined minor NSR in many states are available in
nonattainment areas. By denying a FIP option for minor sources in nonattainment areas, EPA
disadvantages oil and gas sources in Indian country.
EPA's 2011 Indian country NSR Rule has lower minor NSR thresholds for nonattainment areas;
for VOCs the threshold is 2 tpy rather than the 5 tpy for attainment areas. [76 FR 38748, 38758
(July 1, 2011).] Thus, in nonattainment areas, the Indian country minor NSR program applies to
sources that would be exempt if they were in attainment areas. With the lower threshold, EPA's
Indian country minor NSR program covers more sources than it covers in attainment areas and
more than other states' minor NSR programs for attainment and nonattainment areas. New
Mexico and South Dakota exempt sources below 25 tpy and Utah and Oklahoma exempt sources
below 5 tpy. Furthermore, other states also apply the streamlined minor NSR program for oil and
gas sources in nonattainment areas. Oklahoma's oil and gas PBR covers sources below 40 tpy of
any regulated pollutant (except HAPs) and 10/25 tpy of HAPs.160 Wyoming allows all sources
with potential emissions below 100 tpy of criteria pollutants and 10/25 tpy of HAPs to begin
construction or undertake a modification before obtaining a permit under Wyoming's Oil and
Gas Presumptive BACT Permitting Guidance.161
To remedy these gaps, EPA may determine that utilization of an expedited permitting
mechanism for nonattainment areas warrants one or more of the following: (1) limiting eligibility
to locations with emissions limits lower than the major source thresholds of, for example, 100
tpy of VOC or NOx (see Oklahoma and Wyoming examples above); (2) additional monitoring,
recordkeeping and/or reporting; and/or (3) requiring a more robust registration process. EPA
should allow operators use of the National FIP for nonattainment permitting until a basin specific
new minor source permitting program becomes effective under the implementation planning
process to achieve attainment. An expedited permitting scheme for nonattainment areas in the
National FIP would provide regulatory certainty for oil and gas operators, limit emissions, as
necessary, during the transitional phase of designation and implementation planning and
eliminate any disadvantage to the further, responsible development of oil and gas resources in
Indian country.
QEP Resources, Inc. (0038): By denying coverage under the FIP for all sizes of minor sources
and modifications, EPA imposes source-specific permitting for all emission increases without
regard for their potential contribution or any reasonably available emission controls; for VOCs,
this source specific permitting would apply to increases between 2 tpy and 99 tpy. As described
above, states and EPA have acknowledged that even in nonattainment areas, there are certain,
acceptable emission increases related to new development. QEP urges EPA to ensure some
160 See Oklahoma Administrative Code, Title 252, Chapter 100, Subchapter 7-60.5(a)(1). 161 Wyoming Department of Environmental Quality's Oil and Gas Production Facilities, Chapter 6, Section 2
Permitting Guidance (last revised September 2013).
112
streamlined permitting approach in nonattainment areas. We are confident there is a mechanism
to allow for development in nonattainment areas under the National FIP that will simultaneously
ensure new emissions do not cause or contribute to NAAQS violations.
Ute Indian Tribe (0039): The Tribe has serious concerns about the applicability of the FIP to
nonattainment areas. In its current form, the FIP would not cover areas designed as
nonattainment: "[The FIP] would not apply to new and modified true minor sources that are
located or expanding in referenced areas of Indian country designated nonattainment." [80 FR
56557.] Given the very real likelihood of a nonattainment designation for the Uinta Basin in light
of new ozone standards, the Tribe wants to see a rule that will facilitate a smooth transition for
when EPA designates an area as nonattainment that was previously attainment or unclassified
designation. What we cannot afford is a lengthy delay for attainment plans to be developed that
would be just another reason for operators to focus their resources elsewhere.
Ute Indian Tribe (0039): While the Tribe appreciates the decision of the EPA to develop a FIP
for minor sources, the Tribe maintains the position that EPA should develop a FIP specifically
tailored to the unique air quality issues on the Uintah and Ouray Reservation. A nationwide FIP
will not address the problems of a nonattainment designation, which will likely result in EPA
attempting to process hundreds of true minor source permits within a relatively short timeline. If
a reservation-specific FIP would lessen the inevitable administrative burden-both
administratively and practically that will result from a nonattainment designation, EPA should
consider a final rule that provides for streamlined minor NSR in nonattainment areas so as not to
disadvantage development on the Uintah and Ouray Reservation. Such a region-specific FIP
would not only promote certainty in the Uinta Basin, but it would help transition operations
under nonattainment requirements.
As expected, the proposed FIP does not cover areas that are currently or will in the near future
have to transition from attainment to nonattainment, such as the Uinta Basin. Therefore, the FIP
will likely have relatively limited efficacy on our Reservation. Given the amount of resources
that have been devoted toward implementation of this rule, the Tribe would like to see a FIP that
accommodates the Tribe's thoroughly documented concerns. Such a reservation-specific FIP
would not only have many practical effects, it would also accommodate state requirements for
minor source permitting. EPA recognized in the Fort Berthold FIP the importance of maintaining
consistency with state requirements. Attempting to apply a "one-size-fits-all" approach at a
national level would compromise unique concerns about the Uinta Basin's air quality. Just as
EPA addressed the unique issues that arose for sources operating in the Bakken formation, EPA's
Indian Country Minor New Source Review program must be based on a reservation or region-
specific basis.
The Tribe cannot afford to lose the jobs or the revenue that funds essential government services
if and when Utah develops its plan. A reservation-specific FIP would also have other benefits.
Ute Indian Tribe (0039): The Ute Indian Tribe recommends that EPA use a Federal
Implementation Plan ("FIP") as the approach for its Indian Country Minor New Source Review
program. First, EPA should consult with tribes to make sure that the rule addresses tribal
concerns. For the Ute Indian Tribe, EPA should consult at least with the Ute Tribal Business
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Committee, the Energy and Minerals Department, and the Ute Air Quality Division to learn
about oil and gas activities on our Reservation and the best way to regulate minor sources. A
reservation-specific FIP would streamline the permitting approach while also addressing issues
unique to the Uintah and Ouray Reservation. For this reason, the Tribe opposes a nationwide
FIP, which would apply the same standards to all tribes and not account for the specific concerns
of the Ute Indian Tribe.
Any final rule proposed by EPA must also account for the Tribe's dependence on the
development of oil and gas on our Reservation. Energy development has long been an important
part of the Tribe's Reservation and regional economy. The Tribe leases about 400,000 acres for
oil and gas development, including about 7,000 wells that produce 45,000 barrels of oil a day.
We also produce about 900 million cubic feet of gas per day. The Tribe relies on revenues from
oil and gas development as the primary source of funding for governmental services provided by
numerous tribal departments and agencies including natural resources, land, fish and wildlife
management, housing, education, emergency medical services, public safety and energy and
minerals management to name a few. In addition, revenues from oil and gas development
promote employment and economic growth in northeastern Utah including many tribally owned
businesses. The Tribe fears that a nationwide approach would compromise the Tribe's interests.
Ute Indian Tribe (0039): Ozone levels in the Uintah Basin are among the worst in the nation.
Winter ozone levels increase in the Basin when there is snow cover and a strong temperature
inversion that concentrates pollution emissions close to the ground. Under these conditions,
volatile organic compounds (VOCs) and oxides of nitrogen (NOx) rapidly react to form ozone.
Compounding the air quality problems, fugitive carbonyl emissions, especially formaldehyde,
are released from oil and gas sources. This has also been shown to be an important contributor to
ozone formation in the Basin. When these conditions occur, tribal members must endure poor air
quality for weeks at a time.
The Tribe recommends a final rule that regulates emissions in a manner that still allows the Tribe
to continue the development of its natural resources. Therefore, the Tribe recommends that EPA
utilize a reservation-specific Federal Implementation Plan ("FIP") as an approach to address
emissions from minor sources. While it may be difficult for EPA to develop a FIP for each
Indian reservation, EPA should at least develop unique FIPs for major oil and gas producing
tribes such as the Ute Indian Tribe. In doing so, EPA should balance the Tribe's need to continue
economic development on the Reservation with improving air quality for the wellbeing of tribal
members. The reservation-specific FIP would also take into account, though not imitate, the
surrounding state's oil and gas regulations, making it less likely for operators to move operations
to non-Indian and fee land. Such an approach would protect air quality while preserving essential
revenue, jobs, and opportunities for economic development for Indian tribes.
Ute Indian Tribe (0039): The Tribe's concerns are unique to the Uintah and Ouray Reservation
and the Uintah Basin. Other tribes, in areas such as California, Washington, and Oregon do not
share the same air quality concerns as the Ute Indian Tribe. Accordingly, it does not make sense
for EPA to apply the same standards to all Indian tribes. Instead, EPA should address the
individual concerns for each tribe's reservation or region. Such a localized FIP would account
for, but not adopt, state rules and regulations to ensure that operators are not punished for on-
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reservation activities or rewarded for abandoning tribal operations in favor of fee or state land.
To function as a solution rather than a barrier to development, the approach must take into
account each reservation's unique characteristics. Although the Fort Berthold FIP is
fundamentally different, EPA should use this FIP as a model.
A FIP developed solely for the Ute Indian Tribe is necessary to account for ozone problems
unique to the Uintah Basin. Here, a nonattainment designation for ozone seems inevitable.
Nonattainment areas have levels of pollutants that make air quality fall below national
standards.162 Due to these deficiencies, the CAA requirements impose more stringent technology
requirements on nonattainment areas in order to bring those areas within the national standards
over time. [42 U.S.C. §§ 7501-7503.] Both Uintah and Duchesne Counties are designated as
"unclassifiable." [77 FR 30110, 30151 (May 21, 2012).] Should EPA declare the Basin as
nonattainment to reduce ozone pollution in the region, operators will be required to modify their
technologies accordingly.
States usually take the lead in ensuring that regions or sources do not violate the NAAQS.163 If
EPA designates an area as nonattainment, then the state must develop a plan to bring the area
back into attainment within a limited period of time. The applicable regulations impose strict
emissions controls and other measures on sources operating or proposing to operate in
nonattainment areas. [See generally, 42 U.S.C. §§ 7502, 7503; 40 CFR §§ 51.165-.166.] Fully
aware of the strict emissions controls, the Tribe has been working with its oil and gas industry
partners to identify emission reduction strategies that could improve public health and could also
reduce future regulatory requirements that would occur if the area is designated as
nonattainment.
However, episodic and voluntary seasonal controls are not enough to effectively reduce
emissions in the area. The Tribe would like to see oil and gas operators take steps now, rather
than after the nonattainment designation, to address emissions that cause or contribute to a
NAAQS or PSD increment violation. Because oil and gas development is so essential to the
Tribe, it is important to preserve the Tribe's ability to continue development. The Tribe cannot
afford to lose the jobs or the revenue that funds essential government services. Further, steps to
improve air quality should not be delayed until EPA designates the Basin as nonattainment for
ozone. Delayed action compromises the health and safety of tribal members and non-Indians
throughout the Basin. Here, the Tribe would like to see EPA establish air quality controls to
address the air quality concerns in a matter that is neither excessively expensive nor
unnecessary.164 For this reason, a reservation-specific FIP is preferred.
Gas Processors Association (GPA) (0040): At the same time, GPA appreciates EPA’s concern
that the requirements in the FIP may not be appropriate in all cases, particularly in near-
nonattainment areas or other locations where air emissions are not adequately controlled. [See 80
FR 56564.] However, rather than addressing those concerns on a case-by-case basis after an
operator has already made significant and irreversible investments in a new project, GPA urges
162 42 U.S.C. § 7407(d); see also Great Basin Mine Watch v. EPA, 401 F.3d 1094, 1096 (9th Cir. 2005) (describing
the three classifications of air quality). 163 See North Carolina v. EPA, 531 F.3d 896, 902 (D.C. Cir. 2008); see also 42 U.S.C. § 7410. 164 See, e.g., Sierra Club v. US. EPA, 99 F.3d 1551, 1556 (10th Cir. 1996).
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EPA to provide advance notice of specific areas where the general FIP would not be applicable
and where an area-specific FIP and/or site-specific permits would be required. To ensure notice
to the regulated community and a sufficient public process for such changes to the scope of the
FIP’s applicability, GPA urges EPA to publish any decisions to exclude certain areas from the
FIP in the Federal Register and provide the public with an opportunity to comment. Such an
approach would ensure both the uniformity and advance notice that are necessary to ensure that
operators can make investments in new construction in reliance on the FIP.
Gas Processors Association (GPA) (0040): In the preamble to the proposed FIP, EPA suggests
that this streamlined permitting process may not be appropriate for sources located in near-
nonattainment areas where ambient pollutant concentrations approach or exceed NAAQS design
values. [80 FR 56564.] Such areas are at risk of being designated nonattainment in the future,
which would potentially subject sources to different and more stringent emissions limits through
a nonattainment FIP. The threat of a looming nonattainment designation could have a chilling
effect on oil and gas development in such an area because sources would lack certainty about
applicable permit conditions and how they may change over time if the area’s attainment status
changes.
To provide certainty to the regulated community, GPA urges EPA to allow this proposed FIP to
bridge the gap between attainment and nonattainment area requirements in the event that current
attainment areas are re-designated in the future due to NAAQS revisions. Specifically, we urge
EPA to specify that this FIP and its streamlined NSR review provisions will remain in effect for
near-nonattainment areas and areas re-designated to nonattainment until EPA takes further action
for that area. If EPA later adopts a FIP specific to a nonattainment area or near-nonattainment
area in Indian Country, that later FIP would then supersede the requirements of the currently
proposed FIP. An area-specific FIP would undergo a notice and comment rulemaking process
that would provide affected sources with an opportunity to shape the FIP and adjust their future
development plans accordingly. Including such an approach in the proposed FIP would give
sources certainty about the future regulatory requirements of conducting business in near-
nonattainment areas, thereby allowing them to make informed business decisions about where to
invest.
Earthjustice et al. (0044): Rather than address the air pollution caused by existing oil and gas
operations in Indian Country on a systematic basis nationwide, EPA proposes to address them as
needed in “area- or reservation-specific FIPs.” [80 FR 56570.] EPA plans to prepare reservation-
specific FIPs when “necessary or appropriate.” [Id.] Beyond these two vague criteria EPA states
only that “[a]t a minimum, the EPA or tribes will need to develop area-specific plans if and when
areas of Indian Country become nonattainment for ozone or other NAAQS pollutants.” [Id.]
Environmental and Tribal Commenters support EPA’s authority to issue reservation-specific
FIPs to cover existing sources.
However, designation of a nonattainment area is a poor criterion to guide EPA’s discretion about
when issuing a FIP is “necessary or appropriate.” Waiting for a nonattainment designation can
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take years, leaving public health unnecessarily at risk.165 Indeed, many areas are already
suffering from unhealthy levels of air pollution. As EPA acknowledges in the ANPR, a
nonattainment trigger is problematic given the lack of monitoring in Indian Country.166 Even in
areas of Indian Country that have monitors, nonattainment designations may not be forthcoming
if monitors are not considered “regulatory” monitors.167 A better approach would be for EPA to
exercise its well-established legal authority to implement technologically feasible regulations for
existing sources located in Indian Country nationwide, through a single, nationally applicable
FIP. This would reduce uncertainty, prevent EPA from undergoing unnecessary regulation, and
most importantly protect the health of tribal members and others immediately, rather than
waiting additional years before putting pollution reduction rules in place. Even with a nationally
applicable FIP covering existing sources, certain areas may need more attention, like the Uinta
Basin and the San Juan Basin.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Though Environmental
Commenters do not comment here on EPA’s efforts to streamline permitting for new sources, we
do note that EPA must ensure that any streamlined approach (1) ensures compliance with all
applicable standards, even in the face of industry growth, and (2) provides for adequate tribal and
public input when sensitive resources are at stake. As to the first point, EPA states that it
“envisions” that a facility that complies with any applicable FIP or other streamlined procedure
would not be “likely” to cause or contribute to a NAAQS or PSD increment violation. [79 FR
32514-15]. However, EPA does not explain how it would ensure that these standards are met and
will continue to be met for all regions of the country.168 EPA must ensure compliance before it
can provide a “blanket exemption” from the Indian Country Minor NRS permitting program or
even allow a source to choose whether to apply the streamlined process or site-specific
permitting. [79 FR 32515-16.]
Accordingly, for areas—like the Uinta Basin—that are already exceeding air quality standards,
EPA must develop emission inventories, model the impacts of new and existing sources, and
adopt control measures necessary to ensure compliance. EPA must then develop a regional FIP
that will ensure compliance with all relevant standards. Depending on the severity of the
problem, control measures may include more stringent controls than those described below, caps
on emissions, or offsets. EPA should also include requirements to revisit the FIP on a regular
basis to ensure continued compliance. Only then could EPA allow minor sources in these regions
to avoid the Indian Country Minor NSR permit review. Environmental Commenters further
recommend that EPA establish specific triggers, such as a certain percentage of the NAAQS, to
identify areas that are in danger of exceeding air quality standards, and commit to developing
regional FIPs if certain conditions are met. Due to the scarcity of regulatory monitoring in Indian
165 See Memorandum from Janet G. McCabe, EPA Acting Assistant Administrator to EPA Regional Administrators,
Regions 1-10 at 5 (Oct. 1, 2015), http://www3.epa.gov/ozonepollution/pdfs/20151001memo.pdf (Appx. at 2111)
(setting deadline to finalize designations at October 1, 2017). 166 See 79 FR 32517 (“Using design values or attainment status to identify areas in need of enhanced environmental
protection may yield results that are not equitable and/or fully protective of air quality, due to the scarcity of
monitoring in Indian Country.”). 167 See Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 154–56 (D.C. Cir. 2015). 168 See 79 FR 32517 (EPA recognizing that “uniform standards would need to ensure a sufficient level of protection
for all areas in which they would apply despite difference in air quality issues in different areas”).
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Country, EPA should base its decision to develop a regional FIP on all reliable monitoring and
modeling data, and not just design values at regulatory monitors.
Western Energy Alliance (0045): We question EPA’s authority to impose site-specific
permitting requirements in areas that have not yet been officially designated out of attainment of
the National Ambient Air Quality Standards (NAAQS) for any criteria pollutant standards.
Further, in light of the recently lowered NAAQS for ozone of 70 ppb, a substantial number of
areas in Indian Country may now be deemed “close to” the standard, triggering EPA’s discretion
to require site-specific permits. Site-specific permitting in areas “close to” the standard will
disadvantage development in Indian country as it relates to development in state airsheds. While
Indian country development will be stifled by site-specific permitting timelines, development in
the state airshed will be supported through existing, state-created general permitting schemes for
minor sources.
Note that states have set parameters around the state discretion to impose source-specific
obligations, including air quality impact analysis for minor sources. For example, Arizona limits
discretion as follows “The Director shall make such a request [for an air quality impact
assessment], if there is reason to believe that a source or minor NSR modification could interfere
with attainment or maintenance of a standard. In making that determination, the Director shall
take into consideration: 1. The source’s emission rates. 2. The location of emission units within
the facility and their proximity to the ambient air. 3. The terrain in which the source is or will be
located. 4. The source type. 5. The location and emissions of nearby sources. 6. Background
concentrations of regulated minor NSR pollutants.”169 EPA has proposed no limits on EPA
discretion nor described any objective parameters or the factual basis for exercising such
discretion.
EPA’s proposal preamble further provides, “[t]he agency recommends at the time of registration,
the owner/operator of all new sources or all sources scheduled for modification contact the
Reviewing Authority for a review of the air quality status of that area, and the possibility of a
requirement for a site specific permit.” [80 FR 56564.] Such a recommended practice slows
down the permitting process, calls on additional agency resources, and runs counter to the
principles of a streamlined registration process.
We implore EPA to honor one of the core benefits of the National FIP – a streamlined
registration scheme for minor emission sources – and not eclipse such a benefit by declaring the
right to require site-specific permitting in a broad and unrestricted manner.
Accordingly, we urge EPA to remove the language cited above in the preamble and National
FIP, granting the Agency unlawful authority to require site-specific permitting simply to “ensure
attainment of the NAAQS,” in areas where the measured design value is “close to” the relevant
NAAQS and based on a case-by-case “review of the air quality in that area.”
Western Energy Alliance (0045): The National FIP Must Provide for Streamlined Permitting for
Nonattainment Areas - As proposed, the National FIP does not cover nonattainment areas. “It
[the FIP] would not apply to new and modified true minor sources that are located or expanding
169 Arizona Administrative Code Title 18, Chapter 2, Section R18-2- 334(E)(1)-(6).
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in referenced areas of Indian country designated nonattainment.” [80 FR 56557.] Further, EPA
fails to provide a transition for when an area goes from an attainment or unclassified designation
to a nonattainment designation. Given the recently lowered ozone standard, this scenario is likely
to play out in several areas of Indian country, most notably the Uinta Basin. Once a
nonattainment designation is made, the only apparent registration/permitting mechanism is site-
specific permitting for all minor sources of emissions.
Moreover, the Clean Air Act does not mandate any attainment planning for areas designated
marginal nonattainment. Even for areas designated moderate nonattainment, attainment plans are
not due until three years after the official designation. During this delay associated with any area-
specific minor NSR nonattainment program, the source-specific permitting burden will increase
for both major sources and minor sources. The major source threshold reduces from 250 tpy to
100 tpy and the minor source threshold decreases for VOCs from 5 tpy to 2 tpy. The number of
source-specific permits will increase under any scenario for EPA simply based on the lower
major source threshold.
As stated by EPA itself, it is not viable for EPA to deny coverage of this FIP for nonattainment
areas “due to our inability to process hundreds of true minor source permits in an acceptable
timeframe.” [80 FR 56568.] For example, note EPA Region 8’s receipt of over 6,000 oil and
natural gas minor source registrations to date. In the other minor NSR streamlined permitting
rules for Bundle 1, EPA included provisions that would allow continued use of streamlined
permitting in nonattainment areas. [See, 80 FR 25068 (May 1, 2015).] EPA has provided no
nonattainment options for oil and natural gas sources. Streamlined minor NSR in many states are
available in nonattainment areas. By denying a FIP option for minor sources in nonattainment
areas, EPA disadvantages oil and natural gas sources in Indian country.
EPA’s Indian Country Minor NSR rule has lower minor NSR thresholds for nonattainment areas;
for VOCs the threshold is 2 tpy rather than the 5 tpy for attainment areas. Thus, in nonattainment
areas, the Indian Country minor NSR program applies to sources that would be exempt if they
were in attainment areas. With the lower threshold, EPA’s Indian Country minor NSR program
covers more sources than it covers in attainment areas and more than other western states’ minor
NSR programs for attainment and nonattainment areas. Arizona exempts sources from minor
NSR that have emissions below 20 tpy of VOCs, New Mexico and South Dakota exempt sources
below 25 tpy, Utah and Oklahoma exempt sources below 5 tpy. The proposed Indian Country oil
and natural gas minor NSR FIP would not exempt from minor NSR any sources with emissions
above the minor NSR thresholds and the Alliance is not asking EPA to revise the exemption
threshold. However, the oil and natural gas minor NSR FIP should extend its streamlined
authorization for new and modified minor sources and minor modifications at major sources to
similarly sized sources in nonattainment areas.
Other western states apply the streamlined minor NSR program for oil and natural gas sources in
nonattainment areas. Oklahoma’s oil and gas PBR covers sources below 40 tpy of any regulated
pollutant (except HAPs) and 10/25 tpy of HAPs.170 Wyoming allows all sources with potential
emissions below 100 tpy of criteria pollutants and 10/25 tpy of HAPs to begin construction or
170 See Oklahoma Administrative Code, Title 252, Chapter 100, Subchapter 7-60.5(a)(1).
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undertake a modification before obtaining a permit under Wyoming’s Oil and Gas Presumptive
BACT Permitting Guidance.171 Colorado also has streamlined minor NSR programs that can be
used in areas of nonattainment. By way of example see the following General Construction
Permit examples in Colorado. They contain additional requirements for applications in
nonattainment areas, so one can infer that they are accepted for use in the Denver-Julesburg
Basin in Colorado’s Front Range nonattainment area.
To remedy these gaps, Western Energy Alliance urges EPA to provide for an expedited
permitting mechanism for minor sources in nonattainment areas in the National FIP. EPA should
allow owners/operators use of the National FIP for nonattainment permitting until a basin
specific new minor source permitting program becomes effective under the implementation
planning process to achieve attainment. An expedited permitting scheme for nonattainment areas
in the National FIP would provide regulatory certainty for oil and natural gas operators, limit
emissions, as necessary, during the transitional phase of designation and implementation
planning and eliminate any disadvantage to the further, responsible development of oil and
natural gas resources in Indian Country.
By denying coverage under the FIP for all sizes of minor sources and modifications, EPA
imposes source-specific permitting for all emission increases without regard for their potential
contribution or any reasonably available emission controls; for VOCs, this source specific
permitting would apply to increases between 2 tpy and 99 tpy. As described above, states and
EPA have acknowledged that even in nonattainment areas, there are levels of emissions that can
be deemed insignificant even for nonattainment areas. The Alliance does not ask that EPA
exempt all small sources from minor NSR but asks EPA to ensure some streamlined permitting
approach in nonattainment areas. The Alliance is confident there is a mechanism to allow for
development in nonattainment areas under the National FIP that will simultaneously ensure that
new emissions do not cause or contribute to a NAAQS violation.
American Petroleum Institute (API) (0046): While the O&G FIP acknowledges several
practical considerations for permitting oil and natural gas sources, the proposed program falls
short of many of the streamlining permitting objectives mentioned above that are found in
corresponding state programs including:
• The proposed O&G FIP lacks a transition policy for regions in Indian Country to
streamline permitting during a transition from attainment to nonattainment status.
American Petroleum Institute (API) (0046):
Proposed Language
(1) Owners and operators of new true minor oil and natural gas sources or minor
modifications at existing true minor oil and natural gas sources as determined pursuant
to 40 CFR 49.153(a) that meet the criteria specified in paragraphs (b)(1)(i) through
(b)(1)(v) of this section, shall comply with the requirements of §§49.104 and 49.105,
171 Wyoming Department of Environmental Quality’s Oil and Gas Production Facilities, Chapter 6, Section 2
Permitting Guidance (last revised September 2013).
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unless the owner or operator obtains a site-specific permit as specified in paragraph
(b)(2) or (b)(3) of this paragraph.
…
(v) The oil and natural gas production facility is not located in a designated
nonattainment area.
[49.101(b)(1)(iv)]
Issue
Having said that, API is very concerned that the proposed FIP does not include a mechanism for
permitting new minor sources and minor modifications in nonattainment areas. With the new,
lower ozone NAAQS and the likelihood of future downward adjustments to other NAAQS, it is
reasonable to expect that certain areas with O&G operations that currently are in attainment with
NAAQS will be designated as nonattainment with the new standards. If a mechanism for
permitting new and modified minor sources does not exist in such areas, a nonattainment
designation can be tantamount to a construction moratorium for O&G sources. This outcome
would completely frustrate the whole purpose of promulgating a FIP as the means for ensuring
quick and streamlined permitting of minor sources on Indian lands.
During the delay associated with any area-specific minor NSR nonattainment program, the
source-specific permitting burden will increase for both major sources and minor sources. As
stated by EPA itself, it is not viable for EPA to deny coverage of this FIP for nonattainment areas
“due to our inability to process hundreds of true minor source permits in an acceptable
timeframe.” [80 FR 56568.] For example, note EPA Region 8’s receipt of over 6,000 oil and gas
minor source registrations to date.
In the other minor NSR streamlined permitting rules for Bundle 1, EPA included provisions that
would allow continued use of streamlined permitting in nonattainment areas. [See, 80 FR 25068
(May 1, 2015).] EPA has provided no nonattainment options for oil and gas sources.
To avoid this problem, API recommends that applicability of the FIP should be extended to areas
that are newly designated nonattainment for any applicable NAAQS. We recommend that the
FIP should be available at least for the period between nonattainment designation and the point
at which a nonattainment minor source permitting program is established. Under this approach,
the FIP would serve as a temporary “bridge” that would allow continued development and
operation of O&G sources under the FIP if nonattainment designation occurs, but only until area-
specific attainment plans can be developed and, if determined to be necessary and appropriate,
new permitting rules are put in place. API recognizes that attainment plans are not mandated for
marginal nonattainment areas. API recommends that the FIP should stay in place for oil and gas
sources until any attainment plan that is required is developed and if such plan includes a
different minor NSR program to replace the FIP for oil and gas sources in the nonattainment
area.
This approach would protect air quality in new nonattainment areas because new minor O&G
sources could be developed only under the stringent rules incorporated into the FIP. So, at most,
only nominal additional emissions would be added to the new nonattainment area. Also, as
needed for purposes of developing an effective nonattainment SIP for a given area, EPA and the
Tribes would have to holistically evaluate all emissions, stationary and mobile, to determine the
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appropriate solution for achieving attainment, which may not be limited to oil and gas sources.
EPA and the Tribes always have authority to impose additional obligations on sources covered
by the FIP (but, only as needed to demonstrate that attainment will be achieved by the applicable
deadline and that reasonable progress will be made in the meantime). Therefore, appropriate
regulatory “tailoring” could be done to make sure that use of the FIP ultimately would not
unreasonably interfere with nonattainment planning or eventual NAAQS attainment.
In the absence of providing this flexibility, new sources or modifications in Indian Country that
transitions to nonattainment under the new ozone standard will be required to obtain site-specific
permits after October 1, 2017. Based on historic performance of issuing permits, it will be
difficult, if not impossible, for all affected sources to obtain case-by-case permits in a timely
manner because of the substantial increase in permit burden on the agency for both major and
minor sources, as described above. Accordingly, oil and gas sources in nonattainment areas face
the prospect of ceasing development in Indian Country that is designated as nonattainment.
American Petroleum Institute (API) (0046):
Recommendation
API suggests that the FIP should apply in attainment areas and during the transition from when
an area is designated nonattainment and when a regional attainment FIP can be finalized and if
that specific attainment FIP changes the minor NSR program for oil and gas sources.
Registration will be required if facility emissions are greater than the Minor NSR thresholds for
nonattainment areas. Facilities could only utilize the FIP in the transition period if emissions are
less than major NSR thresholds.
(1) Owners and operators of new true minor oil and natural gas sources or minor
modifications at existing true minor oil and natural gas sources as determined pursuant
to 40 CFR 49.153(a) that meet the criteria specified in paragraphs (b)(1)(i) through
(b)(1)(v) of this section, shall comply with the requirements of §§49.104 and 49.105,
unless the owner or operator obtains a site-specific permit as specified in paragraph
(b)(2) or (b)(3) of this paragraph.
…
(v) The oil and natural gas production facility is not located in a designated
nonattainment area with an approved attainment TIP/FIP that supersedes requirements
for new and modified sources and the facility’ is less than major NNSR thresholds.
[49.101(b)(1)(iv)]
American Petroleum Institute (API) (0046): On September 18, 2015, the EPA proposed a
federal implementation plan to streamline air permitting for true minor sources in the oil and
natural gas sector located in Indian Country (O&G FIP).
API supports the concept of the proposed O&G FIP with the ability to maintain consistency with
existing federal regulations. API also supports the approach of addressing existing sources in
nonattainment areas at a regional level.
State of Utah, Office of Energy Development (0047): The ICMNSR and FIP should provide
timely permitting of new wells in Tribal jurisdiction airsheds that addresses both attainment and
nonattainment designations. As proposed, the ICMNSR and FIP would require site-specific
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permitting in EPA designated nonattainment areas after designations are made in the fall of
2017. Site-specific permitting would create unnecessary costs, delays and uncertainty for oil and
gas permitting.
Considering the EPA’s recent lowering of the ozone standard, the oil and gas industry must
prepare for the possibility of operating under nonattainment scenarios. Unfortunately, the EPA’s
national FIP does not cover nonattainment areas. [80 FR 56557.] The EPA also does not provide
a pathway for oil and gas permitting that addresses a transition from attainment or unclassified to
a nonattainment designation. The EPA has acknowledged that it lacks the experience and staff
resources to administer a site-specific program. [80 FR 56568.] In other minor NSR rules, the
EPA has extended streamlined permitting options to non-oil and gas sources in nonattainment
areas.172 It is crucial that the ICMNSR and FIP provide timely and cost-effective permitting
solutions that do not unfairly disadvantage oil and gas sources. Accordingly, the EPA should not
finalize its ICMNSR and FIP until it has a regulatory solution in place, such as a permit by rule
program, to allow for streamlined permitting of oil and gas development under nonattainment
scenarios.
Anadarko Petroleum Corporation (0058): Finally, for the Federal New Source Review on
Indian Country: As written, this particular rule has no utility, will not allow for a streamlined
permitting mechanism for Utah, in which we operate, in the tribal area shale, due to the inability
to use the federal implementation process for synthetic minors and in nonattainment areas or
areas that are anticipated to be nonattainment.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #29: Several commenters (0038, 0039, 0040, 0045, 0046, 0047, 0058) requested that
the EPA include provisions in the FIP to allow for streamlined permitting of minor oil and
natural gas sources in nonattainment areas, including permitting in areas during the transition
period between the time an area is designated as nonattainment and the time a FIP to control
emissions adequately in such nonattainment area is in place. One commenter noted that with the
lowered ozone standard, this issue may become particularly problematic in certain areas, most
notably the Uinta Basin. Commenters requested that the FIP continue to provide for minor
source permitting in such areas until a basin-specific permitting program becomes effective
under the implementation planning process. Because an attainment plan is not due until three
years after an area becomes nonattainment, the absence of a vehicle to allow for continuing
minor source permitting would require source-specific permits during this transition period and
would disadvantage oil and natural gas development in Indian country. One commenter
suggested that the FIP continue as the permitting vehicle during the transition period, and that the
EPA develop area-specific FIPs for re-designated areas that would supersede the national FIP
upon issuance.
Response #29: The EPA recognizes to the potential for certain tribal areas to be designated as
nonattainment for the new ozone standard. Currently, the permitting mechanism in place under
172 40 CFR Part 4.164.
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the Federal Indian Country Minor NSR rule for oil and natural gas sources wishing to locate in
nonattainment areas is limited to source-specific permits. We believe that this FIP as designed
will be protective of air quality in attainment, attainment/unclassifiable and unclassifiable areas
but will not necessarily be protective in nonattainment areas without further action to reduce
emissions from existing sources. Therefore, we are stating our intent to potentially apply this
national FIP’s requirements as appropriate to nonattainment areas where the EPA has established
a separate, area-specific FIP action. In that separate, area-specific action we would propose – and
seek comment on – the application of this FIP’s requirements to new and modified true minor
sources in those certain areas designated nonattainment.
It is important to note that the geographic scope of this FIP cannot be extended to cover any
nonattainment areas without the EPA first proposing to apply its requirements to such an area
through a separate rulemaking subject to notice and an opportunity to comment. We are here
merely expressing our intent to use the approach described above in the future to provide
coverage for new and modified true minor sources in Indian country nonattainment areas, should
such areas exist, where the EPA believes that the FIP, or some variation thereof, in combination
with an area-specific FIP, is sufficient to protect air quality.
Our expression of intent to consider adopting this FIP in nonattainment areas as an
accompaniment to an area-specific FIP addressing existing sources is in direct response to
comments requesting that this FIP be extended to tribal nonattainment areas at least for a period
of time after designation and until it is replaced by another FIP that addresses new and modified
sources. A factor in considering whether to extend the coverage of this FIP is if we believe that
existing source emissions will be reduced to a great enough extent to allow room for further
growth of the industry in the area, while also protecting air quality. As noted above, the public
will have an opportunity to comment on any such expansion of coverage of this FIP in the
separate, area-specific action.
5.0 Comments Related to How the EPA Selected Equipment Included in the Proposed
FIP
Southern Ute (0031): The Tribe recommends adding language to 40 CFR 49.101 and 40 CFR
49.105 expressly requiring installation of equipment subject to the six-incorporated standards.
The FIP proposes to satisfy the Indian Country New Source Review (NSR) requirements through
compliance with six incorporated EPA standards as written at the time of construction, but does
not change the applicability of the standards or relieve sources subject to the standards from
complying with them independently of the FIP. In the absence of a FIP condition expressly
requiring installation of equipment subject to the six incorporated EPA standards a source could
utilize second-hand equipment with no applicable NSPS or NESHAP requirement and thus, no
control technology requirements or emission limitations as required by 40 CFR 49.154(c). The
Tribe recommends EPA clarify that the intent of the FIP is to require new and modified sources
be constructed utilizing only equipment subject to the six incorporated EPA standards.
National Tribal Air Association (0032): The Proposed Rule will apply solely to true minor
sources engaged in the production segment of the oil and natural gas sector. However, this leaves
unregulated the natural gas production process, natural gas transmission and storage, and natural
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gas distribution segments. EPA indicates the reason for not regulating these latter three segments
is that the production segment includes the majority of true minor sources in the oil and natural
gas sector that would need to obtain a minor source permit in areas covered by the Federal Indian
Country Minor NSR Rule. This reason does nothing to address the other unregulated segments
nor does the Proposed Rule indicate if or when such segments will ever be regulated, meaning
that they will continue to pollute freely without consequence and continue to do harm to the
health and natural environments of Indian Tribes.
The NTAA recommends that the Proposed Rule provide for the regulation of the natural gas
production process, natural gas transmission and storage, and natural gas distribution segments
of the oil and natural gas sector. Alternatively, the NTAA asks that EPA indicate whether it
intends to regulate any or all of these three segments in the future, and if so, what is EPA’s
projected timetable for doing so.
Gas Processors Association (GPA) (0040): At the same time, however, GPA respectfully
requests EPA make a number of enhancements to the program to make it more effective.
Specifically, EPA should:
• Expand the scope of the proposed FIP to include both synthetic minor sources and gas
processing plants as well as to allow voluntary participation for existing sources
Gas Processors Association (GPA) (0040): While the proposed FIP would provide much-needed
benefits to true minor sources that would otherwise be required to comply with site-specific
preconstruction permitting requirements, it does not go far enough to ensure the continued
competitiveness of oil and natural gas development in Indian Country. Therefore, GPA urges
EPA to expand the scope of the FIP to include synthetic minor sources, as well as natural gas
processing facilities. Streamlined permitting processes are commonplace in state-administered
preconstruction review programs. Unlike the proposed FIP, however, state-administered
programs typically include both true minor and synthetic minor sources and also extend to both
gathering and processing facilities. As proposed, the FIP would result in a more burdensome site-
specific permitting approach for synthetic minor sources and gas processing plants than that used
by most states. Under such an approach, oil and natural gas production in Indian Country would
be at a competitive disadvantage due to higher permitting costs and longer permit lead-times. To
avoid this situation and fulfill the federal government’s fiduciary duties, the proposed FIP should
be expanded as described below.
Gas Processors Association (GPA) (0040): GPA also urges EPA to expand the proposed FIP to
include natural gas processing plants. The vast majority of natural gas processing plants are
operated as minor sources and thus would benefit from a streamlined preconstruction review
process for the same reasons as sources in the oil and natural gas production sector. As an initial
matter, drawing a line between gathering and processing sources is arbitrary. Operators typically
employ the same types of equipment at both compressor station sites for gathering lines and at
gas processing plants. For example, compressor engines, dehydrators, and tanks are commonly
used at both types of sites. Moreover, this same equipment is commonly found at well sites, too.
As a result, both compressor station sites and gas processing plants produce similar types of air
emissions and emissions from both types of sources can be controlled in the same manner. Thus,
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extending the FIP to include natural gas processing plants would help to ensure uniformity and
consistency within the natural gas sector. While there are some types of equipment, such as turbo
expanders, refrigeration equipment, and mole sieve dehydration units that are unique to natural
gas processing plants, these types of equipment are not significant enough sources of emissions
to justify a separate site-specific permitting program for gas processing plants in Indian Country.
Further, state regulators who are responsible for the vast majority of minor source
preconstruction permitting do not distinguish between the gathering and processing sources
within the natural gas sector. Instead, they typically develop a single streamlined permitting
program that applies broadly to sites in the oil and natural gas industry. For example, the
Oklahoma DEQ has developed a General Permit for Oil and Gas Facilities1 that is not limited to
one sector of the industry:
This permit is limited to air pollutant emitting sources located at [oil and gas facilities]
that are designed and operated for the production, gathering, processing, storage, or
transportation of crude oil, refined petroleum products, natural gas, and natural gas
liquids (NGL), including condensate.
In addition, the TCEQ’s permit by rule for Oil and Gas Handling and Production Facilities, 30
TAC § 106.352, is not limited to one sector of the industry:
Applicability. This section applies to all stationary facilities, or groups of facilities, at a
site which handle gases and liquids associated with the production, conditioning,
processing, and pipeline transfer of fluids or gases found in geologic formations on or
beneath the earth’s surface including, but not limited to, crude oil, natural gas,
condensate, and produced water with the following conditions.
Several other states take similar approaches. The collective experience of these states
demonstrates that gas processing plants can be effectively regulated under the same streamlined
permitting process as compressor station sites and other sources in the production sector. Thus,
there is ample support for EPA to expand the proposed FIP to include gas processing plants
without jeopardizing air quality in Indian Country. Further, the many state permitting programs
referenced in Attachment 1 can serve as a template for EPA if it chooses to extend the
streamlined permitting process to include gas processing plants.
Gas Processors Association (GPA) (0040): In addition, GPA recommends that EPA clarify the
definition of natural gas processing plant by revising it to be consistent with the definition in
other air rules. In particular, EPA should specifically note that a Joule-Thompson valve, dew
point depression valve, or an isolated or standalone Joule-Thompson skid does not make a site a
natural gas processing plant. GPA recommends that EPA reference or incorporate the definition
of a natural gas processing plant contained in NSPS OOOO. [See 40 CFR 60.5430.]
Gas Processors Association (GPA) (0040): While GPA supports EPA’s efforts to provide a
streamlined process for true minor sources in the oil and natural gas production sector, the
proposed FIP does not go far enough and, unless changes are made, will disadvantage oil and gas
development in Indian Country. As explained above, the vast majority of states with oil and
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natural gas resources have streamlined permitting programs that go beyond the scope of the
proposed FIP by including synthetic minor sources and natural gas processing plants. Because
these state permitting programs offer more flexibility to both oil and natural gas producers,
gatherers, and processors by increasing the types of sources that can qualify for streamlined
preconstruction permitting, most companies would prefer to site their sources on non-tribal lands
that are subject to state permitting instead of the more time-consuming, complicated, and costly
site-specific permitting requirements that will apply to sources that do not qualify for the
proposed FIP.
For example, consider a gathering company that is evaluating two sites for a new compressor
station which will be a synthetic minor source, Site A in Indian Country and Site B in a nearby
state. Since gathering pipelines often span several miles, it is common for a gathering company
to have several siting options for a compressor station. Under the proposed FIP, the permitting
process for Site A would likely take well over a year and the resultant permit conditions would
be unknown in advance, creating equipment design uncertainties. On the other hand, Site B
qualifies for a state-level streamlined permitting approach with known permit conditions and a
prescribed 30-day issuance timeline. Absent other factors, a company would select Site B due to
its efficiency and certainty. Indeed, compressor stations can be conceived, designed, installed,
and put into operation in less than one year. Streamlined state-level permitting programs
accommodate the fast-moving nature of the oil and gas industry, whereas EPA’s proposed
approach would be the limiting factor in starting construction for synthetic minor sources. This
puts tribes at a significant economic disadvantage in attracting new investments in the oil and
natural gas sector.
Therefore, it is imperative that EPA level the playing field between tribal and non-tribal land by
adopting streamlined permitting programs that are similar in scope to those in competing states.
As discussed above, EPA must include both synthetic minor sources and natural gas processing
plants in its streamlined preconstruction review program. Indeed, EPA arguably has an
obligation to do so here. As a trustee for tribal resources, the federal government has a fiduciary
duty to protect and promote tribal resources.173 A permitting program that creates systemic
barriers to the development of oil and natural gas resources in Indian Country is inconsistent
with that mandate. Thus, EPA has an obligation to develop regulatory programs for Indian
Country that allow tribes to compete with other landowners with respect to oil and gas
development. To ensure the competitiveness of oil and gas production in Indian Country, EPA
must expand the FIP to include both synthetic minor sources and gas processing plants.
Earthjustice et al. (0044): EPA should expand the scope of the Proposed FIP to include sources
outside of the production segment and methane emissions.
The Proposed FIP regulates only sources in the production segment of the oil and gas sector. [80
FR 56562.] EPA’s only rationale for limiting the scope is that it “believe[s] the oil and natural
gas production segment includes the majority of the true minor sources in the sector.” Id. But
173 Two Shields v. United States, 119 Fed. Cl. 762 (Ct. Fed. Claims 2015) (“The BIA has a fiduciary duty to ensure
that the Indians’ mineral resources ‘will be developed in a manner that maximizes their best economic interests and
minimizes any adverse environmental impacts or cultural impacts resulting from such development’” (quoting 25
CFR § 212.1(a))).
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there are other minor sources that can potentially create significant emissions in Indian Country,
including compressor stations in the transmission segment and non-major gas processing plants.
[See Coalition ANPR Comments at 17.] In order to fill the “gap” in the CAA, EPA should
regulate these sources in the final rule. Otherwise, these pollution sources and their health
impacts will be concentrated in Indian Country.
Earthjustice et al. (0044): We incorporate by reference the comments of several environmental
and public health organizations on the Proposed Source Determination Rule. [See Source
Determination Comments.] Given the number of rulemakings that have the potential to affect oil
and gas emissions in Indian Country, including the Source Determination Rule, we expect that
EPA will take the effect of the other rules into account as it considers which sources will be
affected by the Proposed FIP.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): The FIP can use the NSPS
Subpart OOOO as a model for determining applicability for existing sources. Subpart OOOO
defines “facilities” to consist of individual pieces of equipment (such as pneumatic controllers
and compressors), rather than attempting to define facilities according to physical boundaries or
emission thresholds. This approach has advantages for facilities in the oil and gas sector, which
vary significantly in size and complexity and comprise a large number of relatively small
sources. As EPA recognized in the ANPR, “[t]he contribution of any individual emission point to
the total emissions inventory may be comparatively small. But collectively, the cumulative
emissions of numerous existing emissions point could exceed that of large, new major sources,
and result in adverse air quality impacts.” [Id. at 32518.] Because the oil and gas sector is made
up of many different small sources and there is significant diversity in how facilities are
composed, a method like the one employed in Subpart OOOO would be most effective. EPA
also notes that this approach “could ensure that all existing sources meet cost-effective emissions
reduction requirements, and avoid potential disputes related to stationary source boundaries.”
[Id.]
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): EPA should consider
expanding the scope of the Indian Country minor source permitting program to include
compressor stations in the transmission segment and non-major gas processing plants. The stated
rationale for focusing only on the production phase is that the bulk of the minor sources that
would be covered under either the FIP or general permit approach are in the production segment.
[79 FR 32505.] Under either approach (though, as stated elsewhere in these comments, we
recommend a FIP-based approach), however, other potentially minor sources can be significant
sources of emissions. While gas processing plants may tend to be potentially major sources, EPA
should address those plants that do not meet the “major source” criteria, whether through actual
or “synthetic” potential emissions (i.e., permit limits setting emission levels below the major
source threshold), in whatever approach it ultimately takes here. Additionally, compressor
sources that are located in the transmission segment can emit significant amounts of both VOC
and NOx. In order to truly fill the gap in the existing regulations to comply with the Clean Air
Act’s purpose of “protect[ing] and enhanc[ing] the quality of the Nation’s air resources so as to
promote the public health and welfare and the productive capacity of its population” [42 U.S.C. §
7401(b)(1).], EPA should expand the coverage of its oil and gas minor NSR permitting program
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in Indian Country to cover minor gas processing plants and compressor stations in the
transmission segment.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): We agree that drill rigs
are important sources that warrant regulation under a FIP. At this time, we simply note that drill
rig control requirements include ignition timing retard, exhaust gas recirculation, selective
catalytic reduction (SCR), replacement of Tier 2 engines with those that comply with Tier 4
requirements, and diesel oxidation catalysts. We anticipate providing further comments on the
control requirements for this source when EPA publishes its proposal.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Relatively simple
control requirements exist for both reciprocating and centrifugal compressors at reasonable cost.
For reciprocating compressors, the control requirements we recommend for existing sources is
the same as what is currently required by the new source performance standards for the oil and
natural gas sector (Oil and Gas NSPS): good maintenance practices. [See 40 CFR § 60.5385(a).]
Emissions from reciprocating compressors occur primarily due to worn-out packing seals
surrounding connector rods that transmit motion into high-pressure cylinders. Over time, the seal
(or “rod packing”) wears down. If not regularly replaced, the emissions that result from this
breakdown can become very large. The Oil and Gas NSPS addresses these emissions, requiring
the rod packing to be replaced every 36 months or 26,000 hours of operation. [40 CFR §
60.5385(a).] However, this requirement only applies to reciprocating compressors that were
constructed after August 23, 2011, despite there being no difference in requiring this control on
those “new” sources and the existing sources that are allowed to operate without any
maintenance requirements on the rod packing. In fact, maintaining an existing reciprocating
compressor costs the same as maintaining a new compressor, less than $460 per ton of avoided
VOC emissions.174
The Oil and Gas NSPS’ gap in coverage between new and existing sources signals how
important the FIP approach is over a general permit approach. It simply does not make sense to
require operators to only keep good maintenance practices for newer reciprocating compressors
while allowing them to ignore the older compressors when the same practices are cost-effective
regardless of age. In fact, based on the Technical Support Document from the Oil and Gas NSPS,
wellpad compressor emissions could be reduced by eighty percent by extending this requirement
to existing sources nationwide.175 Moreover, emissions from existing gathering and boosting
reciprocating compressors – which are located before a gas processing plant – would decline by
more than half if the standards for new compressors were extended to existing compressors. [Id.]
Accordingly, we recommend that EPA promulgate a FIP that requires owners or operators to
replace the rod packing of existing reciprocating compressors every 36 months or 26,000 hours
of operation.
174 Calculated from data from EPA, Regulatory Impact Analysis for Proposed New Source Performance Standards
and Amendments to the National Emissions Standards for Hazardous Air Pollutants for the Oil and Natural Gas
Industry (July 2011) at 3-16, Table 3.3, available at
http://www.epa.gov/ttn/ecas/regdata/RIAs/oilnaturalgasfinalria.pdf. 175 See EPA, Oil and Natural Gas Sector: Standards of Performance for Crude Oil and Natural Gas Production,
Transmission, and Distribution: Background Technical Support Document for Proposed Standards (July 2011)
(hereafter, “2011 TSD”) at 6-10, Table 6-5; 6-15, Table 6-6.
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Emissions from centrifugal (turbine) compressors also originate from seals, but in a different
manner. Centrifugal compressors are generally configured with one of two types of seal for the
main shaft of the compressor: wet or dry. Dry (i.e., oil-free) seals are designed in a way that
minimizes leaks across the seal. Wet seals, in contrast, use oil to seal a narrow gap between the
shaft and its housing. This oil absorbs significant amounts of the high-pressure natural gas,
which must be removed from the oil before it is re-circulated into the seal. Typically, the gas
removed from the seal oil is vented, and these emissions can be substantial: a typical wet-seal
centrifugal compressor vents nearly 32 metric tons of VOC per year.176
Environmental Commenters recommend that EPA require existing centrifugal compressors to
either replace their wet seal configuration with one that utilizes dry seals, or that it requires
owners or operators to capture the emissions from the oil degassing unit (which are otherwise
vented) to the natural gas inlet of the compressor. This is an approach that the Oil and Gas NSPS
took for new centrifugal compressors. [See 40 CFR § 5380(a).] According to the EPA’s 2012
NSPS, retrofitting oil degassing emissions from wet seal centrifugal compressors to a vapor
recovery unit can reduce venting by 95 percent. [See 2011 TSD, Section 6.4.4.2.] EPA has
estimated that the capital cost to route seal oil degassing emissions to fuel gas or compressor
suction is $22,000,177 and due to the substantial amount of gas captured, the payback period for
this option is 3 months.178
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Liquids unloading
represents a significant source of VOC emissions. The need for reductions from this source is
even more prescient after EPA’s decision to not address these emissions in the Oil and Gas
NSPS. Fortunately, it is possible to control these emissions through the use of plunger lifts.
Almost every well that is drilled will experience the need for liquids unloading at some point
during its life. Such a need occurs when water and other liquids accumulate in a mature well,
slowing (or stopping) gas production for that well. In order to maintain production, operators
remove, or “unload”, these liquids through a variety of methods, many of which vent gas to
varying degrees. These methods include: installing pumps to lift liquids; injecting soaps or other
additives into the well to foam the liquids or installing smaller diameter production tubing in a
well to increase the velocity of gas up the well to enable the gas flow to better entrain liquids;
176 See EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2012, Annex 3, Table A-128 available
at http://epa.gov/climatechange/Downloads/ghgemissions/US-GHG-Inventory-2014-Annex-3-Additional-Source-or-
Sink-Categories.pdf (“Inventory) (51,370 scfd of methane per compressor = 18,750 mcf/y). Using an assumed
methane content by weight of 87 percent, we calculated a typical centrifugal compressor to emit 356.3 metric tons of
methane per year. Converting that to VOC, using a conversion factor of 0.09, see 2011 RIA at 3-16, Table 3-3, we
estimate a typical centrifugal compressor to emit 32 metric tons of VOC per year. 177 EPA, Oil and Natural Gas Sector: Standards of Performance for Crude Oil and Natural Gas Production,
Transmission, and Distribution, Background Technical Support Document for the Final New Source Performance
Standards, (April 2012, 2011), at Section 6.2 (hereafter “2012 TSD”), available at http://www.epa.gov/airquality/
oilandgas/pdfs/20120418 tsd.pdf) 178 Calculated based on a 90% abatement from initial 19,000 mcf emissions, and a $4/mcf price for gas.
130
and installing a plunger lift, a simple device that efficiently lifts a column of liquid out of a well
and significantly reduces the amount of vented gas.179 Whatever method the operator chooses,
there is ample time to plan for the control of emissions resulting from liquids because, as stated
above, almost every well will need to undergo it at some point.
Unfortunately, many operators forego these proven, affordable approaches to liquids unloading
and crudely “blow down” the well by allowing it to vent to the atmosphere. Since atmospheric
pressure is lower than the pressure in gathering pipelines, this can increase the flow rate in the
well, allowing some portion of the liquids to reach the surface entrained with the high gas flow.
However, the “blow down” approach is extremely wasteful, as it vents large quantities of gas
while only removing a small portion of the liquids in the well.180
Environmental Commenters recommend that EPA require the use of plunger lifts on new and
existing wells that need to undertake a liquids unloading event. While plunger lifts may be
configured to vent some gas while unloading wells, the quantity of venting will generally be
much less for a given well if a plunger lift is used than if the well is unloaded using a crude blow
down approach. Additionally, avoiding or minimizing wasteful venting from liquids unloading
via a plunger lift is very low-cost. According to Natural Gas STAR documentation, capital costs
for a relatively routine plunger lift installation can range from $1,900 to $10,400 per well
[Lessons Learned – Plunger Lifts, pp. 3-4.], and can reduce venting of natural gas 70-90 percent.
[Lessons Learned – Options, p. 5.] Smart automation of plunger lifts can reduce venting more
than 90 percent from baseline emissions with no plunger lift, at total capital costs of $7,600 to
$28,000 per well. [Lessons Learned – Options, Exhibit 9.] Because the gas that would otherwise
be wasted is being recovered instead, the operator will see increased revenue from the sale of
that recovered gas.
Moreover, there are additional benefits. A “blow down” requires operational costs in the form of
labor costs from manual blow downs and workover costs as a result of remediating poor
conditions from liquids build-up. Installing plunger lifts will not only reduce these costs, but they
will also increase the productivity of the well more effectively (and in a more timely manner)
than blow-downs. [Lessons Learned – Plunger Lifts, p. 9.] Accordingly, the up-front costs of
plunger lifts can be quickly recouped through reduced maintenance associated with blow downs
as well as increased revenue from increased gas production and minimizing (or eliminating)
wasteful venting. As a result, plunger lift installations typically have payback periods of 9
months or less. [Lessons Learned – Plunger Lifts, p. 1.]
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Colorado recently
updated regulations covering glycol dehydrators at production facilities, compressor stations and
gas processing plants. [See 5 C.C.R. 1001-9 § XVII.D (2014).] The Colorado regulations will
require all existing glycol dehydrators (those built prior to May 1, 2015) that have uncontrolled 179 See USEPA, Lessons Learned from Natural Gas STAR Partners, Options for Removing Accumulated Fluid and
Improving Flow in Gas Wells.” hereafter “Lessons Learned – Options,” available at
http://www.epa.gov/gasstar/documents/ll_options.pdf). 180 See USEPA, Lessons Learned from Natural Gas STAR Partners, Installing Plunger Lift Systems in Gas Wells,”
hereafter “Lessons Learned – Plunger Lifts,” p. 1, available at
http://epa.gov/gasstar/documents/ll_plungerlift.pdf).
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actual emissions greater than or equal to 6 tons VOC per year to achieve hydrocarbon emissions
reductions of 95 percent by installing either a condenser or air pollution control equipment. [Id. §
XVII.D.3.] For new glycol dehydrators and existing dehydrators located near buildings or other
designated outside activity area, the applicability threshold is actual uncontrolled emissions of 2
tons VOC per year. [Id. § XVII.D.4.] The Colorado Department of Public Health and the
Environment calculated abatement costs to be between $632 and $786 per ton VOC abated.181
Environmental Commenters therefore recommend that the appropriate control requirements for
both new and existing glycol dehydrators be established as VOC emission reductions of 95% via
a condenser.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Oil storage tanks at well
production facilities, compressor stations, and gas processing plants emit large amounts of
VOCs. Under the Oil and Gas NSPS, storage tanks are separated into Group 1 (those
constructed, modified, or reconstructed after August 23, 2011 and on or before April 12, 2013)
and Group 2 (those constructed, modified, or reconstructed after April 12, 2013). [40 CFR §
60.5430.] Each tank that has the potential to emit 6 tons per year of VOC must achieve 95
percent reduction of those emissions. [Id. § 60.5395(d)(1).] Group 1 was required to comply by
April 15, 2014, [id. § 60.5395(d)(1)(i)], while Group 2 is required to comply with 60 days of the
startup of the storage vessel, [id. § 60.5395(d)(1)(ii)] by routing such emissions via a closed vent
system that meets the requirements of 40 CFR § 60.5411 to either a control device or a beneficial
use. [Id. § 60.5395(e)(1).] If the owner or operator is able to maintain the uncontrolled emissions
below 4 tons per year, the 95 percent reduction requirement does not apply unless the storage
tank receives liquids from a newly fractured or refractured well. [Id. § 60.5395(d)(2).]
Colorado recently updated its control requirements for petroleum storage tanks to include both
new and existing storage vessels. Colorado’s rule follows the Oil and Gas NSPS requirements
closely, except that if a combustion device is used the operator must achieve 98 percent
reductions. [See 5 C.C.R. 1001-9 § XVII.C.1.b (2014).] The CDPHE estimated that this
requirement would affect 588 tanks that emit over 6 tons VOC emissions over six tons per year
per year and would reduce VOC emissions in the state by 5,162 tons per year. [Id. at 8.] It
calculated an average VOC abatement cost of $716 per ton VOC reduced. [Id. at 9.]
Environmental Comments therefore recommend that EPA require new and existing storage
vessels to capture VOC emissions via a closed vent system and route those emissions to a
beneficial use. If EPA does allow the use of a combustion device to reduce VOC emissions, we
recommend following Colorado’s approach or requiring a destruction efficiency of 98 percent.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): We agree that truck
loadout is an important source that warrants regulation under a FIP. We anticipate providing
further comments on the control requirements for this source when EPA publishes its proposal.
181 CDPHE, Cost Benefit Analysis for Proposed Revisions to AQCC Regulations No. 3 and 7. at 34-35, available at
ftp://ft.dphe.state.co.us/apc/aqcc/COST%20BENEFIT%20ANALYSIS%20&%20EXHIBITS/CDPHE%20Cost-
Benefit%20Analysis_Final.pdf).
132
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): We agree that phase
separation is an important source that warrants regulation under a FIP. We anticipate providing
further comments on the control requirements for this source when EPA publishes its proposal.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): EPA greatly limited the
use of high-bleed controllers for new installations as part of NSPS Subpart OOOO (high-bleed
controllers may only be newly installed “based on functional needs, including but not limited to
response time, safety and positive actuation”). [40 CFR § 60.5390(a).] However, Federal rules do
not affect the hundreds of thousands of existing high bleed controllers that were installed before
August 23, 2011, the effective data for these provisions of Subpart OOOO. [Id. § 60.5365(d).]
Colorado, on the other hand, required operators to replace existing high-bleed controllers in the
urban portions of the Denver-Julesberg (D-J) basin in 2009,182 and in early 2014 it required
operators to replace all high-bleed controllers statewide by May 1, 2015. [5 C.C.R. § 1001-9
XVIII.C.2.b (2014).] Colorado found that replacement of a high-bleed controller with a low-
bleed controller pays for itself, from the value of the conserved gas, in fourteen months.183 It is
notable that Colorado’s existing rule for the urban parts of the D-J basin contained provisions
allowing operators to keep high-bleed controllers in service, if they showed that doing so was
necessary for “safety and/or process purposes.” [5 C.C.R. § 1001-9 XVIII.C.3 (2009).] No
operator requested such an exemption,184 and there is no evidence in the record that these
requirements have caused any operational problems. Pneumatic controllers emitting less than 6
scfh (both continuous- and intermittent-bleed) can serve many of the functions of higher-emitting
intermittent devices, which thus could be replaced with low-bleed controllers. Clearly, replacing
high-bleed controllers with equipment that vents less natural gas is very low cost and quite
feasible.
Environmental Commenters recommend that EPA use a FIP approach to prohibit the use of any
new or existing pneumatic valve controller that emits more than 6 scfh, except when technically
necessary. For new pneumatic controllers that are at facilities connected to the grid, the FIP
should require zero-bleed pneumatics that have no emissions. For new sources that are not
connected to the grid, the FIP should prohibit pneumatics with a bleed rate averaged over time of
more than 6 scfh (whether continuous- or intermittent-bleed). Finally, the FIP should require that
existing high-bleed devices (whether continuous- or intermittent-bleed) be replaced with low- or
zero-bleed devices. While exemptions should be attainable in certain circumstances where
highbleed devices are technically necessary, experience in Colorado suggests this will be rare.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Because of the
ubiquitous nature of leaks, operators should conduct regular Leak Detection and Repair (LDAR)
surveys at all facilities, including well pads, other production facilities, gathering compressor
stations, and gas processing plants that are not covered under 40 CFR Part 60, subparts KKK and
182 See 5 C.C.R. § 1001-9 XVIII (2009), available at
https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=2772&fileName= 5%20CCR%201001-9). 183 Cost-Benefit Analysis. Submitted per § 24-4-103(2.5), C.R.S. for proposed revisions to Colorado Air Quality
Control Commission Regulation Number 3 (5 CCR 1001-5) and Regulation Number 7 (5 CCR 1001-9), p. 32,
available at ftp://ft.dphe.state.co.us/apc/aqcc/COST%20BENEFIT%20ANALYSIS
%20&%20EXHIBITS/CDPHE%20Cost-Benefit%20Analysis_Final.pdf. 184 Email from Daniel Bon, CDPHE, to David McCabe, Clean Air Task Force, 1 November 2013.
133
OOOO. In the “Regulatory Analysis for Proposed Revisions to Colorado Air Quality Control
Commission Regulation Numbers 3, 6 and 7,” Colorado used a rule of thumb to estimate that
operators could achieve VOC emissions reductions of 40 percent with annual inspections, 60
percent with quarterly inspections, and 80 percent with monthly inspections.185
Recent studies have shown that instrument-based LDAR programs are a very cost-effective way
to reduce wasteful leaks. A recent study of LDAR surveys by Carbon Limits,186 for example,
showed that the cost of surveys is quite reasonable (for example, surveys of well sites cost about
$400, with the cost rising somewhat for larger facilities), and once leaks are identified, it is in the
operator’s economic interest to repair them in almost every instance.187 The report focuses on
LDAR surveys of compressor stations, gas plants, and well sites/well batteries. Carbon Limits
analyzed data from over 4,000 LDAR surveys of oil and natural gas facilities in Canada and the
U.S. which identified nearly 40,000 leaks. The surveys in this study were performed with
infrared (IR) cameras, which can rapidly scan components to locate hydrocarbon gas emissions.
Once identified, the leaks were measured with a high-volume sampler or were estimated. Carbon
Limits then assessed the net present value (NPV) of repairing the identified leaks based on the
estimated costs of repair and the value of the gas that was conserved by the repair. [Id. at 16.]
The conclusions are striking: even using a very low value of conserved gas of $3/Mcf, over 97
percent of the identified emissions were from leaks that had a positive repair NPV (i.e., repairing
the leak cost less than the value of the gas conserved). Even after taking into account the cost of
performing a survey, the aggregate NPV of performing the surveys in the database and repairing
the identified leaks was generally positive. [Id. at 18.] While many LDAR surveys had a small
net cost (the survey and repair costs were slightly larger than the value of the conserved gas), this
was outweighed by the net benefit of performing the survey and repairing the leaks at the leakier
facilities.
Recognizing the low cost and high value of LDAR surveys, several states have taken steps to
reduce waste from leaks by requiring regular surveys. In February 2014, Colorado revised its oil
and gas regulations to require instrument-based LDAR surveys for well production facilities as
well as at natural gas gathering compressor stations. [See 5 C.C.R. § 1001-9 § XVII.F (2014).]
Facilities must perform LDAR surveys at compressor stations and well production facilities at a
frequency that is dependent on the VOC emissions from that facility. [Id. at Tables 3, 4.] The
frequencies required span from one time, for well production facilities with the smallest annual
uncontrolled emissions, to annual, quarterly, and monthly, for facilities with successively larger
annual uncontrolled emissions. Similarly, the required frequency for gathering compressor
stations may be annual, quarterly, or monthly, depending on uncontrolled annual emissions. [Id.
at Table 3.] The Colorado rules also require the repair to be made promptly, unless a shutdown is
185 Regulatory Analysis for Proposed Revisions to Colorado Air Quality Control Commission Regulation 3, 6, and 7.
Pg. 49, available at
ftp://ft.dphe.state.co.us/apc/aqcc/REGULATORY%20ANALYSIS%20&%20EXHIBITS/CDPHE%20RA_FINAL.2
014.pdf. 186 Carbon Limits is an independent consultancy experienced in climate change policies and emission reduction
project identification and development, particularly in the oil and gas sector. 187 Carbon Limits, Quantifying Cost-Effectiveness of Systematic Leak Detection and Repair Programs Using
Infrared Cameras, at 5, available at http://www.catf.us/resources/publications/ view/198).
134
required (in which case it must be made during the next scheduled shutdown). [See id. §
XVII.F.7.a]188 Colorado also requires the repaired leak to be re-monitored within 15 days of the
repair, in order to confirm that the leak was indeed fixed. [Id. § XVII.F.7.b.]
Several oil and gas producers in the state supported Colorado’s rule.189 Those firms submitted
data, based on their own experience performing LDAR surveys, during the Colorado rulemaking
process. These data show that firms can perform LDAR surveys at even lower cost than the
figures used in the Carbon Limits study described above.190
Several other states require some or all oil and gas facilities to conduct instrument-based LDAR
surveys regularly in order to obtain a permit or general permit. These include Pennsylvania,191
Wyoming,192 and Ohio.193 We do not support these “step-down” provisions in LDAR rules as
they incentivize operators to not find leaks, increase the complexity of the rule and compliance
efforts, and the record shows that facilities can have leak frequencies below 2% and still waste
copious amounts of natural gas.194 The base frequency of the LDAR requirement for affected
facilities in Wyoming and Ohio is quarterly. These rules demonstrate the feasibility of reasonable
LDAR rules, but the EPA and the vast majority of states producing significant amounts of
natural gas do not require LDAR for oil and gas production facilities or gas gathering and
transmission compressor stations. Environmental Commenters therefore recommend that
instrument-based LDAR surveys be carried out at least quarterly on all sources in the production
segment. In addition, auditory, visual, and olfactory (AVO) inspections should be performed
approximately monthly.
188 The first attempt to repair that leak must be made within 5 days; if the necessary parts must be ordered, or other
good cause delays the attempt, a repair must be made within 15 days of either receipt of the parts of the cause of
delay ceases to exist). 189 Finley, Bruce. “Colorado pitches new rules to cut oil and gas industry air pollution,” The Denver Post,
11/18/2013, available at http://www.denverpost.com/environment/ci_24548337/proposed-colorado-air-
pollutionregsclamp-down-oil. 190 Anadarko Petroleum Corporation. Regulations 3, 6 & 7 Colorado Air Quality Control Commission Hearing.
February 19-21, 2014, available at
ftp://ft.dphe.state.co.us/apc/aqcc/PRESENTATIONS/Noble%20Energy%20Inc%20&
%20Anadarko%20Petroleum%20Corporation/Anadarko.pdf; Noble Energy. Colorado Air Quality Control
Commission Hearing Proposed Revisions to Regulation 7 Testimony. February 19-21, 2014, available at
ftp://ft.dphe.state.co.us/apc/aqcc/PRESENTATIONS/Noble%20Energy%20Inc%20&%20Anadarko%20Petroleum
%20Corporation/Noble.pdf. 191 Department of Environmental Protection, Air Quality Permit Exemptions, Category No. 38, available at
http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-96215/275-2101-003.pdf. 192 Quarterly instrument-based LDAR is required in the Upper Green River Basin for new and modified facilities.
See Wyoming Department of Environmental Quality (2013), Oil and Gas Production Facilities Chapter 6, Section 2
Permitting Guidance at 22 and 27, available at http://deq.state.wy.us/aqd/ Oil%20and
%20Gas/September%202013%20FINAL_Oil%20and%20Gas%20Revision_UGRB.pdf. 193 Ohio General Permit 12 for oil and gas production sites requires quarterly instrument-based LDAR, although it
contains provisions for less frequent LDAR for facilities with manageable leak frequencies (if less than 2% of
components are leaking, the next survey can be skipped). See Ohio General Permit 12.1(C)(5)(c)(2) (available at
http://epa.ohio.gov/dapc/genpermit/oilandgaswellsiteproduction.aspx). 194 See Sierra Club, et al., Rebuttal Prehearing Statement for Colorado Oil and Gas 2014Rulemaking at 8-11,
available at
ftp://ft.dphe.state.co.us/apc/aqcc/REBUTTAL%20STATEMENTS,%20EXHIBITS%20&%20ALT%20PROPOSAL
%20REVISIONS/Conservation%20Group/Conservation%20Groups%20-%20REB.PDF.
135
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): While we anticipate
providing further comments on the control requirements available for these sources, we note here
that there are available options at very reasonable cost to address the NOx emissions from both
new and existing compressor engines according to one state with extensive experience with oil
and gas development. As EPA notes, there are two main distinct types of “compressor engines”:
combustion turbines, which power centrifugal compressors, and reciprocating internal
combustion engines that power the reciprocating compressors. [79 FR 32507.] Both types emit
high levels of NOx, as well as PM, sulfur dioxide, carbon monoxide and some VOCs. In
preparation of its Regional Haze State Implementation Plan (Haze SIP), Wyoming estimated that
at least three controls would achieve between 80 and 99 percent control efficiency of NOx for
reciprocating compressor engines: low-emission combustion retrofit (80 to 90 percent efficiency
at $320-$2,500 per ton NOx removed); selective catalytic reduction (SCR) (90 percent efficiency
at $870-$31,000 per ton NOx removed); and selective non-catalytic reduction (SNCR) (90 to 99
percent efficiency at $16-$36 per ton NOx removed).195 Emissions from such sources can reach
700 tons per year of NOx. [Id. at 125.] Environmental Commenters therefore recommend a FIP
approach require all new sources to install at least one of these technologies and to require
existing sources to retrofit with the appropriate control. Moreover, EPA should require the use of
electric motors for new engines – which eliminate the NOx and PM emissions from these
sources – unless the operator shows it is infeasible to do so.
Wyoming further notes control technologies for the turbines, including: water or steam injection
(68 to 80 percent control efficiency at $560-$3,100 per ton NOx removed); low NOx burners
(LNB) (68 to 84 percent control efficiency at $2,000-$10,000 per ton NOx removed); SCR (90
percent efficiency at $1,000-$6,700 per ton NOx removed); and a combination of SCR and water
or steam injection (93 to 96 percent efficiency at $1,000-$6,700). [Id. at 126, Table 7.3.5-1.]
Similar to the reciprocating combustion engines, an individual combustion turbine can emit up to
877 tons of NOx in a single year. [Id. at 124.] Accordingly, we recommend a FIP approach that
requires the combination of water or steam injection plus SCR for all new sources, and for
existing sources to retrofit with one of the above listed technologies.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): While we anticipate
providing further comments on the control requirements available for these sources, we note here
that there are available options at very reasonable cost to address the NOx emissions from
external combustion units, or “process heaters.” Specifically, control requirements include the
use of SNCR (roughly 60 percent control efficiency at $4,700-$5,200), SCR (70 to 90 percent
control efficiency at $2,900-$6,700), and a combination of SCR plus LNB (70 to 90 percent
control efficiency at $2,900-$6,300). [Id. at 126, Table 7.3.5-1.]
EDF ANPR Comments – referenced by Earthjustice et al. (0044): An effective FIP should
include the major emission reduction measures highlighted in the ICF report. These include well
completions of both oil and gas wells, casing head and associated gas emissions, pneumatic
controllers and pumps, storage vessels, liquids unloading, comprehensive LDAR, and
195 Wyoming Dept. of Environmental Quality, Air Quality Division, Wyoming State Implementation Plan: Regional
Haze: Addressing Regional Haze Requirements for Wyoming Mandatory Federal Class I Areas Under 40 CFR
51.309(g) (Jan. 7, 2011), at 126, Table 7.3.5-1. Docket No. EPA-R08-OAR-2012-0026-0002.
136
compressors. We more fully explore these control technologies in the appendix to these
comments. [See EPA-HQ-OAR-2011-0151-DRAFT for Appendix.]
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Fortunately, proven, cost-
effective technologies exist to mitigate harmful emissions from oil and gas operations.
According to an EDF-commissioned report by the independent consulting firm ICF International,
approximately 40 percent of methane emissions from the oil and gas sector could be eliminated
by 2018 at a total cost of just one penny per thousand cubic feet of gas produced.196 Moreover,
many of the pollution reduction measures contained in the report actually save money by routing
gas to sales that otherwise would have been leaked to the atmosphere. Taking into account
savings across the economy, an emissions reduction of 40 percent will help conserve gas worth
approximately $100 million annually. [Id. at 1-2.] Because these strategies capture or control
emissions that also include air toxics and VOCs, the report projects that the same strategies will
reduce both toxic pollution and VOCs by 44 percent (representing reductions of 25,000 tons of
HAP and 686,000 tons of VOC).
Of the mitigation measures identified in the report, 93% of them fall into five key categories: (1)
comprehensive and frequent leak detection and repair (“LDAR”) at facilities in the production,
gathering, processing, and transmission segments; (2) replacement of high-bleed pneumatic
controllers, and high-emitting intermittent pneumatic controllers, with low-bleed models; (3)
installation of vapor recovery systems on wet seal compressors, and regular replacement of
reciprocating compressor rod packings; (4) control of emissions from oil wells, including
mitigation of associated gas venting and oil well completion emissions; and (5) control of liquids
unloading emissions. Appendix 1 provides additional details for each of these key areas.197
American Petroleum Institute (API) (0046): The EPA should include natural gas processing
plants (gas plants) within the scope of the O&G FIP. Gas plants contain similar unit operations
(e.g., compression, dehydration) found in production operations, so extending the O&G FIP to
cover gas plants would not be conceptually or functionally different than a FIP that covers only
production operations. Moreover, gas plants often must be reconfigured to accommodate
changes in upstream production operations. In order to prevent permitting delays at gas plants
which will result in corresponding delays in production activities, gas plants must have a
streamlined mechanism to get initial permits and to permit minor modifications.
In any event, similar to the clarifications provided in 40 CFR 60.5430 of NSPS OOOO, the EPA
should clarify that Joule-Thompson valve, dew point depression valve, or an isolated or
standalone Joule-Thompson skid does not make production operations a natural gas processing
plant.
Recommendation 3 – Natural Gas Processing Plants
Modify the language in §49.101(b)(1)(i) to read:
196 ICF INT’L, Economic Analysis of Methane Emission Reduction Opportunities In The U.S. Onshore Oil and
Natural Gas Industries (Mar. 2014) [hereinafter ICF Report]. 197 Envtl. Def. Fund, Comments on BLM Forum on Venting and Flaring from Oil and Gas Operations on Public and
Indian Trust Lands (May 30, 2014). See EPA-HQ-OAR-2011-0151-DRAFT for Appendix 1.
137
(i) The facility is an oil and natural gas production facility or natural gas processing
plant as defined in §49.102;
Add the following definition to §49.102 for natural gas processing plant from NSPS OOOO:
Natural gas processing plant (gas plant) means any processing site engaged in the forced
extraction of natural gas liquids from field gas, fractionation of mixed natural gas liquids
to natural gas products, or both. A Joule-Thompson valve, a dew point depression valve,
or an isolated or standalone Joule-Thompson skid is not a natural gas processing plant.
American Petroleum Institute (API) (0046): The proposed FIP for oil and gas sources in Indian
Country is limited to facilities that meet the definition of an “oil and natural gas production
facility” as defined in §49.102 [§49.101(b)(1)(i)]. The proposed definition for “oil and natural
gas production facility” is too broad because it encompasses certain mobile sources and certain
construction-related operations that traditionally are not considered stationary sources for the
purposes of Clear Air Act (CAA) permitting programs. For example, the definition includes
references to mobile and temporary sources, such as well drilling, completion, workover
activities, and portable non-self propelled apparatuses associated with those operations that are
not part of permanent oil and gas production operations. The CAA expressly precludes
application of NSR and Title V to mobile sources, such as portable, engine-powered well-drilling
equipment and portable RICE engines. [See CAA §302(z) and §110(a)(2)(C).] Therefore, these
sources should not be covered by the O&G FIP.
American Petroleum Institute (API) (0046): With regard to temporary sources, states with
established oil and gas permitting programs do not require inclusion of drilling, completion,
initial well test, and workover activities in air permit applications. The states have confirmed
these emissions are single events that do not trigger ongoing compliance obligations and,
therefore, permitting such activities would create uncertainty and confusion for operators,
inspectors, and the public. These activities are not part of permanent production operations and it
should be clear that they are not subject to air permitting requirements.
There is a solid basis under the law for this approach. Well drilling, completion and workover
activities are construction activities; they are not a component of “production.” EPA recognized
the distinction between production and construction in the Fort Berthold Indian Reservation
(FBIR) FIP.
The reason we selected the initiation of completions operations as the date for defining a
new facility is that owners and operators use drill rigs prior to initial completion
operations and this equipment is generally not in one location long enough to be
considered a stationary source. In addition, it is not certain during the drilling
operations whether a well will be a producing well. Hence, it is not known whether an oil
and natural gas production facility will be constructed to support that well. The outcome
of a completion operation provides the well owners and operators information necessary
to determine whether an oil and natural gas production facility will be constructed [FBIR
FIP Final Rule dated 3/11/13 Page 17851].
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In addition, emissions from these activities qualify as “secondary emissions” that are not
included in potential to emit calculations for purposes of permitting.
Potential to emit means the maximum capacity of a stationary source to emit a pollutant
under its physical and operational design. Any physical or operational limitation on the
capacity of the source to emit a pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated as part of its design if the limitation or the effect it
would have on emissions is federally enforceable. Secondary emissions do not count in
determining the potential to emit of a stationary source [40 CFR 52,21(b)(4)].
Secondary emissions means emissions which would occur as a result of the construction
or operation of a major stationary source or major modification, but do not come from
the major stationary source or major modification itself … [40 CFR 52.21(b)(18)].
Since secondary emissions such as those from drilling, completion and workover activities are
excluded from PTE calculations, the O&G FIP should not apply to those activities.
We note that emissions from completion activities are already addressed in federal New Source
Performance Standards for Crude Oil and Natural Gas Production, Transmission, and
Distribution under 40 CFR Part 60 Subpart OOOO (NSPS OOOO). The O&G FIP will not
replace or otherwise affect how the NSPS applies. Emissions from the engines associated with
drilling rigs, completions equipment, and other portable engines are regulated under the non-road
engine rules (40 CFR 1039, 1065, 1068, and 89 for diesel engines and 40 CFR 1048, 1060, 1065,
and 1068 for propane, gasoline, and natural gas).
Additionally, the proposed oil and natural gas production facility definition does not include
common unit operations such as water treatment, sweetening units (acid gas removal units),
truck loading, and dewpoint suppression skids. Finally, “low to medium pressure, small
diameter” are arbitrary descriptions for gathering pipelines. They are best described by purpose
(i.e., to gather field gas).
API recommends the following change to the oil and natural gas production facility definition.
Oil and natural gas production facility means a stationary source engaged in the
extraction and production of oil and natural gas, as well as the processing, transmission
and distribution of natural gas, including the wells and all related processes used in the
extraction, production, recovery, lifting, stabilization, and separation or treatment of oil,
water, and/or natural gas (including condensate). Oil and natural gas production
components may include, but are not limited to: wells and related casing head; tubing
head and “Christmas tree’’ piping; pumps; compressors; heater treaters; separators;
storage vessels; pneumatic devices; stationary engines; natural gas sweetening; truck
loading; dewpoint suppression skids, natural gas dehydrators; well drilling, completion
and workover processes and portable non-self-propelled apparatuses associated with
those operations; emission control equipment; and low to medium pressure, smaller
diameter, gathering pipelines and related components that collect and transport the oil,
natural gas and other materials and wastes from the wells or well pads [§49.102].
139
American Petroleum Institute (API) (0046): The current list of referenced federal NSPS and
NESHAP regulation does not include 40 CFR Part 63 Subpart ZZZZ – National Emission
Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion
Engines. EPA should make it clear in the preamble and ensure that no regulatory language of the
FIP excludes oil and gas sources from relying on Subpart ZZZZ to limit the potential to emit of
engines to be able to qualify for the FIP.
This rule should be included in the list of referenced rules to make it clear that the O&G FIP
applies to stationary engines at O&G sources.
Recommendation - NESHAP ZZZZ
(g) For sources that are subject to subpart ZZZZ, National Emission Standards for
Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines, for
purpose of this FIP, sources must comply with all of the applicable provisions of the
standard as written as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #30: One commenter (0031) expressed concern that, in the absence of a FIP condition
expressly requiring installation of equipment subject to the six other EPA rules included in the
proposed FIP, a source could utilize second-hand equipment with no applicable NSPS or
NESHAP requirement and, thus, operate with no control technology requirements or emission
limitations as required by §49.154(c). The commenter recommended adding language to
§§49.101 and 49.105 expressly requiring installation of equipment subject to the six other rules
included in the proposed FIP.
Response #30: The EPA believes that the commenter’s proposal is not workable as it would limit
operators to only installing equipment that is regulated by an EPA standard. Mandating the use
of equipment that meets an EPA standard runs contrary to the FIP’s intent of applying a
consistent set of national requirements across Indian country. In some instances sources may
need to use a piece of equipment that is not subject to an EPA standard. Instead, our approach
under the FIP is to require that equipment subject to one or more of the eight EPA standards
comply with those standards for purposes of the FIP. As long as the equipment in question can
meet the limits to which they are subject, regardless of the mechanism used to do so, the
owner/operator should be able to use that equipment. We believe that this approach is sufficient
to protect air quality in attainment, attainment/unclassifiable and unclassifiable areas. No change
will be made as a result of this comment.
Comment #31: Three commenters (0040, 0044, 0046) asked the EPA to expand the scope of the
proposed rule to include minor oil and natural gas sources outside the production segment. All
three commenters requested that natural gas processing plants be added; two commenters
requested that natural gas transmission and storage facilities be added, and one commenter
requested that natural gas distribution facilities be added. One commenter asked the EPA to
140
indicate whether it intends to regulate any or all of these segments in the future, and if so, what is
the EPA’s projected timetable. One commenter recommended that the language in
§49.101(b)(1)(i) be modified to read:
“The facility is an oil and natural gas production facility or natural gas processing plant
as defined in §49.102;”
Response #31: In response to these comments, the EPA has determined to expand the regulatory
language in the FIP to cover true minor natural gas processing plants. The EPA has added the
requirements of 40 CFR part 60, subpart KKKK, to the list of standards to cover turbines at
compressor stations. The EPA notes that it is not necessary to add 40 CFR 60, subpart KKK -
Standards of Performance for Equipment Leaks of VOC From Onshore Natural Gas Processing
Plants for Which Construction, Reconstruction, or Modification Commenced After January 20,
1984, and on or Before August 23, 2011, or 40 CFR part 60, subpart LL - Standards of
Performance for SO2 Emission from Onshore Gas Processing for which Construction
Commenced after January 20, 1984, and on or Before August 23, 2011. These rules are already
included in the current FIP requirements because they are already included in th eoil and natural
gas NSPS rule at 40 CFR part 60, subpart OOOOa. The EPA is also adding the requirements of
40 CFR 63, subpart ZZZZ - National Emissions Standards for Hazardous Air Pollutants for
Stationary Reciprocating Internal Combustion Engines to the FIP in the final rule. We are
comfortable with including these additional facilities under the FIP to cover true minor natural
gas processing facilities because the rules will require adequate control and we do not feel that
source-specific review is necessary just as we do not regard it as necessary (unless we make an
exception for air quality concerns) for true minor sources in the oil and natural gas production
segment of the oil and natural gas sector.
With respect to the timetable for any future regulation of the oil and natural gas sector, all
segments in the sector are already subject to regulation by the EPA under the Federal Indian
Country Minor NSR rule. However, only certain segments are included in this FIP because we
believe that the vast majority of true minor sources in the oil and natural gas sector are in the oil
and natural gas production and natural gas processing segments of the sector.
Comment #32: One commenter (0046) stated that the proposed definition for “oil and natural gas
production facility” should be revised to exclude references to mobile and temporary sources,
such as well drilling, completion, workover activities, and portable non-self-propelled equipment
because the CAA expressly precludes application of NSR and title V to mobile sources, such as
portable, engine-powered well-drilling equipment and portable reciprocating internal combustion
engines. The commenter recommended that the EPA should make it clear that these sources are
not subject to air permitting requirements under the oil and natural gas FIP. This same
commenter stated that the proposed oil and natural gas production facility definition does not
include common unit operations such as water treatment, sweetening units (acid gas removal
units), truck loading, and dew point suppression skids. The commenter noted that language such
as “low to medium pressure, small diameter” are arbitrary descriptions for gathering pipelines,
and that these equipment are better described by purpose (i.e., to gather field gas). The
commenter recommended the following change to the oil and natural gas production facility
definition:
141
“Oil and natural gas production facility means a stationary source engaged in the extraction and
production of oil and natural gas, as well as the processing, transmission and distribution of
natural gas, including the wells and all related processes used in the extraction, production,
recovery, lifting, stabilization, and separation or treatment of oil, water, and/or natural gas
(including condensate). Oil and natural gas production components may include, but are not
limited to: wells and related casinghead; tubing head and “Christmas tree” piping; pumps;
compressors; heater treaters; separators; storage vessels; pneumatic devices; stationary engines;
natural gas sweetening; truck loading; dew point suppression skids, natural gas dehydrators; well
drilling, completion and workover processes and portable non-self-propelled apparatuses
associated with those operations; emission control equipment; and low to medium pressure,
smaller diameter, gathering pipelines and related components that collect and transport the oil,
natural gas and other materials and wastes from the wells or well pads [§49.102].”
Response #32: The EPA has replaced the definition of “oil and natural gas production facility” in
§49.102 as proposed with “oil and natural gas source.” The new definition incorporates some of
the suggestions recommended by the commenter. We did not include the segments of
transmission or distribution of natural gas in the definition because they do not fall within the
scope of coverage of this FIP.198 However, we believe that completion and workover processes
should not be removed from the definition because they are stationary sources regulated under 40
CFR part 60, subpart OOOOa. This makes the treatment of these sources under the FIP
definition (§49.102) consistent with definitions related to the oil and natural gas sector in 40 CFR
part 60, subpart OOOOa; 40 CFR part 63, subpart HH; and the FBIR FIP.
Comment #33: One commenter (0044) recommended that specific oil and natural gas exploration
and production equipment be regulated under the proposed FIP. Specific equipment
recommended for inclusion in the FIP includes: drill rigs, liquids unloading, dehydrators, truck
loadout, and phase separation. The commenter recommended that plunger lifts be required for all
liquids unloading. The commenter recommended that dehydrators be required to control VOC by
95 percent by using a condenser.
Response #33: The EPA feels that the original suite of six federal rules proposed to be included
in the FIP, in conjunction with the two additional federal rules added under this final action,
combine to adequately control emissions from oil and natural gas facilities for purposes of the
FIP. It should be noted that drilling rig engines are not considered stationary sources for purposes
of permitting under the Federal Indian Country Minor NSR rule, and dehydrators are addressed
under 40 CFR part 63, subpart HH (National Emission Standards for Hazardous Air Pollutants
from Oil and Natural Gas Production Facilities), which is one of the eight federal rules included
in the FIP. No change has been made as a result of this comment.
Comment #34: One commenter (0044) recommended that the proposed FIP include regulation of
emissions from well completions for both oil and natural gas wells, as well as casinghead gas
198 This FIP only covers the oil and natural gas production and natural gas processing segments of the oil and natural
gas sector because we believe that the vast majority of true minor sources in the oil and natural gas sector are in those
two segments.
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and associated gas emissions. The commenter referenced recommendations in an ICF
International report.199
Response #34: The FIP includes the recently revised Standards of Performance for New and
Modified Sources in the Oil and Natural Gas Sector (40 CFR part 60, subpart OOOOa), which
requires control of oil and natural gas well completions for hydraulically fractured wells.
Casinghead gas and associated gas emissions from venting or flaring during ongoing production
are not currently addressed under the eight federal rules included in the final FIP; however, if
those emissions sources are regulated under a future revision of subpart OOOOa, then they
would automatically fall under the requirements of this FIP at true minor sources. No change has
been made as a result of this comment.
Comment #35: Two commenters (0040, 0046) recommended that the EPA clarify the definition
of natural gas processing plant by revising it to be consistent with the definition in other air rules.
Both commenters stated that the EPA should clarify that a Joule-Thompson valve, dew point
depression valve, or an isolated or standalone Joule-Thompson skid does not make a site a
natural gas processing plant. Both commenters recommended that the EPA reference or include
in §49.102 the definition of a natural gas processing plant contained in 40 CFR part 60, subpart
OOOO (§60.5430).
Response #35: The FIP proposal did not include a definition of natural gas processing plant. In
this final action we are modifying §49.102 to revise the definition of an “oil and natural gas
production facility” (now “oil and natural gas source”) to make the treatment of these sources
under the FIP definition (§49.102) consistent with definitions related to the oil and natural gas
sector in 40 CFR part 60, subpart OOOOa; 40 CFR part 63, subpart HH; and the FBIR FIP. We
have also included natural gas processing plant as part of the definition of “oil and natural gas
source” under §49.102.
One of the two commenters recommending including the definition of gas processing plant from
40 CFR part 60, subpart OOOO provided incorrect language for the definition. Nonetheless, we
have concluded that adding a definition for natural gas processing plant to the FIP is
unnecessary; including natural gas processing plant in the definition of source is sufficient to
extend the coverage of this FIP to non-major natural gas processing plants. At the beginning of
§49.102 we make it clear that all terms not defined in the section shall have the meaning given
them in 40 CFR part 60, subpart OOOOa, among other sources, which would include how
natural gas processing plant is defined in the subpart.
Comment #36: One commenter (0046) noted that the current list of referenced federal NSPS and
NESHAP regulations does not include 40 CFR part 63, subpart ZZZZ – National Emission
Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion
Engines. The commenter stated that the EPA should make it clear in the preamble and ensure
that no regulatory language of the FIP excludes oil and natural gas sources from relying on
subpart ZZZZ to limit the PTE of engines to be able to qualify for the FIP. The commenter
199 ICF International, Economic Analysis of Methane Emission Reduction Opportunities in the U.S. Onshore Oil and
Natural Gas Industries (March 2014), at 3-3, available at:
http://www.edf.org/sites/default/files/methane_cost_curve_report.pdf.
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recommended that subpart ZZZZ be included in the list of referenced rules (at §49.105(g)) as
follows:
“For sources that are subject to subpart ZZZZ, National Emission Standards for Hazardous
Air Pollutants for Stationary Reciprocating Internal Combustion Engines, for purpose of
this FIP, sources must comply with all of the applicable provisions of the standard as
written as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:”
Response #36: The EPA has included the requirements of 40 CFR part 63, subpart ZZZZ into the
final FIP as requested by the commenter. As with all of the appplicable requirements from all
eight of the regulations referenced in this FIP, a source can rely on the reductions required by 40
CFR part 63, subpart ZZZZ to reduce its PTE.
Comment #37: One commenter (0044) recommended that the FIP require all new compressor
engines to install steam injection and control technologies such as low-emission combustion
retrofit, selective catalytic reduction (SCR), or selective non-catalytic reduction (SNCR) and to
require existing sources to retrofit with the appropriate control. The commenter further
recommended that the EPA should require the use of electric motors for new engines unless the
operator shows it is infeasible to do so. One commenter recommended that the FIP require all
external combustion units to control NOx emissions with SNCR, SCR, or a combination of SCR
plus low NOx burners.
Response #37: The proposed FIP incorporates control requirements for internal and external
combustion units in accordance with 40 CFR part 63, subpart DDDDD (National Emission
Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters); 40 CFR part 63, subpart ZZZZ (National Emissions
Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion
Engines); 40 CFR part 60, subpart IIII (Standards of Performance for Stationary Compression
Ignition Internal Combustion Engines); 40 CFR part 60, subpart JJJJ (Standards of Performance
for Stationary Spark Ignition Internal Combustion Engines); and 40 CFR part 60, subpart KKKK
(Standards of Performance for New Stationary Combustion Turbines). In the development of the
FIP, we have relied on the analysis conducted in the development of these existing rules to
determine adequate control technology requirements for these types of sources. The FIP only
applies to new true minor sources and modifications at existing true minor sources thus does not
address the control of emissions from existing sources.
6.0 Comments Related to Pollutants Included in the Proposed FIP
Earthjustice et al. (0044): The Proposed FIP states that the pollutants it regulates are VOCs,
NOx, SO2, PM, PM10, PM2.5, H2S, CO, and various sulfur compounds. [80 FR 56563.]
Notably absent is methane. Methane is an extremely potent greenhouse gas with 87 times the
warming potential of carbon dioxide over a 20-year timeframe. [Coalition ANPR Comments at
4; EDF ANPR Comments at 2.] The oil and gas industry is the largest source of anthropogenic
methane pollution in the United States. [Coalition ANPR Comments at 3.] As EPA recognizes in
the Proposed Amended NSPS Rule, “reducing methane from [the oil and natural gas] source
category . . . is something that should be directly addressed through standards for methane . . .
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and, as such, would be an important step towards mitigating the impact of GHG emissions on
climate change.” [80 FR 56599.] Further, EPA explains that “there are cost-effective controls
that can simultaneously reduce both methane and VOC emissions from . . . equipment across the
industry, which in some instances would not occur were we to focus solely on VOC reductions.”
[Id.] Accordingly, EPA proposes to directly regulate methane emissions in the Proposed
Amended NSPS Rule. [Id. at 56600.] In the Proposed FIP, EPA states that it will incorporate the
Proposed Amended NSPS Rule into the FIP. [80 FR 56563.] The final rule should thus also
cover methane emissions to provide operators and tribes with certainty that the parts of the NSPS
rule governing methane emissions also apply in Indian Country. This would also further EPA’s
stated interest in regulating greenhouse gases through minor source NSR review.200 And it would
further the Obama Administration’s goal of reducing greenhouse gas emissions to 17% below
2005 levels by 2020.201
It is also important for EPA to regulate methane directly in the final rule because regulations that
do not address methane emissions result in significantly less pollution abatement. According to
CATF, direct methane standards would reduce about half of the sector’s methane emissions,
while VOC standards would reduce methane emissions by only about 5%. [CATF at 42.]
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Upstream oil and gas
facilities also emit other harmful co-pollutants including smog-forming VOCs and carcinogenic
air toxics. EPA has estimated that an average of approximately 15% of produced natural gas
consists of VOCs, and 1% consists of air toxics.202 According to a recent report by ICF, the oil
and gas sector emits nearly 1.6 million tons of VOC and 57,000 tons of HAP each year. [ICF at
4-12, 4-13.] VOCs contribute to ground-level ozone formation and cause a range of human
health issues, including heightened risks of cancer, respiratory disease, and developmental
disorders in children. Air toxics from oil and gas operations include known carcinogens such as
benzene, as well as variety of other organic compounds recognized as hazardous to public health.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Oil and gas activities
also emit coarse and fine particulate matter (PM10 and PM2.5) and fine particulate precursors
like sulfur dioxide (SO2), VOC, and NOx. Particulate matter has been linked to serious
respiratory and cardiovascular problems, including aggravated asthma attacks, chronic
bronchitis, decreased lung function, heart attacks, and premature death. Sensitive populations,
such as the elderly, children, and people with existing heart of lung problems, are most at risk
from PM pollution. PM also contributes to haze, reducing visibility in scenic areas.203 Dust can
damage significant cultural resources by, for example, obscuring rock art.204 Black carbon, a
component of PM emitted by combustion sources such as flares and older diesel engines also
contributes to climate change. [UNEP Report at 6.]
200 See 76 FR 38759 n.19 (discussing potential for future permitting of greenhouse gas emissions through the PSD
program). 201 White House at 1. 202 EPA, Oil and Natural Gas Sector: Standards of Performance for Crude Oil and Natural Gas Production,
Transmission and Distribution: Background Technical Support Document for Proposed Standards at 4-6 (2011). 203 See EPA, Visibility—Basic Information, available at http://www.epa.gov/visibility/what.html 204 BLM, West Tavaputs Plateau Final Environmental Impact Statement (“West Tavaputs FEIS”), at 3-19, 4-239,
available at http://www.blm.gov/ut/st/en/fo/price/energy/Oil_Gas/wtp_final_eis.html.
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Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Oil and gas wells and
their associated equipment also release hazardous air pollutants (HAPs), including n-hexane,
benzene, toluene, ethyl benzene, xylenes, formaldehyde, naphthalene, acetaldehyde, methanol,
carbonyl sulfide, ethylene glycol, 2,2,4-trimethylentane, methylene chloride, and others.
Documented health effects of the many types of HAPs emitted by the oil and gas industry
include increased risks of cancer, respiratory diseases, and birth defects, among others. Children,
pregnant women, the elderly, and individuals with underlying health problems (such as
respiratory and cardiovascular disease) are particularly vulnerable to these risks.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Emissions of NOx and
other reactive nitrogen compounds harms sensitive ecosystems by acidifying soils and waters as
well as causing over-fertilization. The effects of nitrogen deposition and acidification have been
realized at iconic, treasured public lands including Rocky Mountain and Great Smoky national
parks. At Rocky Mountain National Park for example, the effects of nitrogen deposition have
crossed a damaging threshold. “Observed ecosystem changes include changes in the chemistry of
old-growth, Engelmann spruce forests and other alpine vegetation, shifts in population of lake
diatoms, excess [nitrogen] leakage into lakes and streams, and alterations in biogeochemical
cycling associated with increased microbial activity in high elevation soils and talus.”205
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): The oil and gas industry
is also the largest source of anthropogenic methane pollution in the U.S. according to the EPA’s
Greenhouse Gas Inventory, and recent analyses indicate that the inventory may underestimate
the total methane emissions from this industry.206 Methane is an extremely potent greenhouse gas
that has 36 times the warming potential of carbon dioxide over a 100-year timeframe and 87
times the warming potential of carbon dioxide over a 20-year timeframe.207 To reach the Obama
Administration’s climate goals of reducing greenhouse gas emissions 17% by 2020, the
administration must achieve additional reductions of methane from the oil and gas sector.208
Methane also increases smog-forming ozone, which impacts public health and the environment,
as discussed above. Moreover, as EPA’s Office of Air and Radiation has recognized in its
Climate Change Adaptation Implementation Plan, a warming climate will only make it harder for
the agency to ensure compliance with ozone standards.209 Higher temperatures and weaker air
circulation as a result of climate change is likely to lead to more ozone formation from the same
level of emissions of ozone precursors. Climate change may also lengthen the ozone season,
exposing individuals to health threats for longer periods of the year. There are a growing number
of regions within the U.S. with air quality issues related to oil and gas development, including
areas within and affected by development within Indian country.
205 National Park Service et al., Rocky Mountain Atmospheric Nitrogen and Sulfur Study Report (2009) at S-2,
available at http://www.nature.nps.gov/air/Pubs/pdf/RoMANS_V1_20100218.pdf. 206 See, e.g., Brandt, A.R., et al., Methane Leaks from North American Natural Gas Systems, Science, Vol. 343, no.
6172 at pp. 733-735 (Feb. 14, 2014), available at http://www.novim.org/images/pdf/ScienceMethane.02.14.14.pdf. 207 IPCC, Climate Change 2013: The Physical Science Basis (Sept. 2013), Chapter 8, page 714, Table 8.7, available
at https://www.ipcc.ch/report/ar5/wg1/. 208 See White House, Climate Action Plan: A Strategy to Reduce Methane Emissions (March 28, 2014). Available at
http://www.whitehouse.gov/sites/default/files/strategy_to_reduce_methane_emissions_2014-03-28_final.pdf. 209 EPA, Office of Air and Radiation Climate Change Adaptation Implementation Plan, Draft (Oct. 21, 2013),
available at http://www.eenews.net/assets/2013/11/01/document_pm_03.pdf.
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EDF ANPR Comments – referenced by Earthjustice et al. (0044): Venting and equipment leaks
from the oil and natural gas sector release large quantities of methane, volatile organic
compounds (“VOCs”), and hazardous air pollutants. Methane, the main component of natural
gas, is now believed to be an even more influential contributor to climate change than previously
thought. More than one-third of today’s human-caused global warming comes from short-lived
climate pollutants that include methane, according to the Intergovernmental Panel on Climate
Change (“IPCC”).210 The most recent IPCC report also found that a ton of methane is 84 to 86
times more potent than the same amount of carbon dioxide within the first two decades after it is
emitted, and 28 to 34 times more potent within the first 100 years after it is emitted. Further, the
National Climate Assessment, released in May 2014, found that climate change is already
causing a host of adverse effects around the United States, including longer and more frequent
droughts and heat waves, more frequent and intense extreme weather events, increased flooding,
larger wildfires, and longer fire seasons.211 Many of these impacts will be acutely felt on tribal
lands.212
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): We agree with EPA that
in order to properly function as a replacement of the minor NSR permitting program, our
preferred FIP approach “would need to regulate emissions of all ‘regulated NSR pollutants’ from
minor sources that construct, or major or minor sources that undertake a minor modification.”
[Id. at 32518.] Such pollutants include the emissions of nitrogen oxides (NOx) and volatile
organic compounds (VOC), both precursors to ground-level ozone formation (hereinafter
“ozone” or “smog”), as well as hydrogen sulfide (H2S).
As stated above, addressing emissions of NOx and VOC from new and existing sources is
particularly important. As precursors to ozone, reducing NOx and VOC emissions is vital to
ensure the health and welfare of communities that are experiencing increased, or even any, oil
and gas development as well as to improve visibility in Class I areas. As EPA recognizes, air
quality information suggests that an area’s ability to comply with the 2008 ozone national
ambient air quality standard (NAAQS) is tied to the level of oil and gas production. [Id.]
Moreover, elevated ozone concentrations contribute to adverse health impacts to the public – and
especially children – including decreased lung function, increased hospital admissions,
inflammation and possible long-term lung damage, and even premature mortality.213
The damage is not limited to our health. Impairment to ecosystems is dissed with respect to NOx
and ozone above. Each of these pollutants also contributes to visibility impairment. Moreover,
210 Climate Change 2013: The Physical Science Basis, Contribution of Working Group I To The Fifth Assessment
Report of The Intergovernmental Panel On Climate Change (Thomas F. Stocker et al., Eds. 2013). 211 U.S. Global Change Research Program, 2014 National Climate Assessment (May 2014). 212 See id. at 298 (“Climate change impacts on many of the 566 federally recognized tribes and other tribal and
indigenous groups in the U.S. are projected to be especially severe, since these impacts are compounded by a
number of persistent social and economic problems.”); see also id. at 302–04 (discussing adverse impacts of
ecosystem and water quality changes on tribal communities). 213 EPA, 2006 Air Quality Criteria for Ozone and Related Photochemical Oxidants, (Feb. 2006); EPA, Fact Sheet:
Health and Environmental Effects of Ground-Level Ozone, (July 17, 1997); see also National Ambient Air Quality
Standards for Ozone, 75 FR 2938, 2,948 (Jan. 19, 2010).
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increased ozone concentrations can decrease crop yields by up to 15 percent.214 Reducing VOC
emissions will also provide the co-benefit of reducing of methane emissions, as EPA notes [79
FR 32504], as well as of organic hazardous air pollutants such as “BTEX” compounds (benzene,
toluene, ethyl benzene and xylenes) and n-hexane. Additionally, reducing H2S will reduce a
pollutant with toxic properties that has been linked to: respiratory infections; eye, nose, and
throat irritation; breathlessness, nausea, dizziness, confusion, and headaches.215
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #38: One commenter (0044) recommended that the EPA expand the pollutants
regulated in the proposed FIP to include methane. The commenter noted that, in the proposed
FIP, the EPA states that it will include the requirements of the proposed, amended 40 CFR part
60, subpart OOOOa in the FIP. The commenter stated that adding methane to the list of
pollutants covered by the rule would provide operators and tribes with certainty that the parts of
the NSPS rule governing methane emissions also apply in Indian country.
Response #38: The Federal Indian Country Minor NSR rule does not regulate GHGs, which
include methane. The FIP is implementing the Federal Indian Country Minor NSR rule for the
oil and natural gas sector, and, therefore, does not regulate GHGs. However, it is worth noting
that, while the rule does not directly regulate methane, any controls that effectively control VOC
emissions will also control methane emissions. In addition, in the event that subpart OOOOa as
adopted requires control of methane, methane emissions will be reduced. No change has been
made as a result of this comment.
7.0 Comments Related to Exclusion of Existing Sources from the Proposed Oil and
Natural Gas FIP
Marrs (0027): While the EPA does not generally regulate existing permits in the case of minor
sources, here there should be an exception. The minor sources at issue here do contribute to
negative health and safety effects on humans, thus the various sources in the natural gas and oil
industry—with typically volatile organic compounds (VOCs), and hazardous air pollutants
(HAPs)—the goal could be lost should there not be some sort of alteration to support existing
sources of emissions.
214 Fitzgerald L. Booker, Joseph E. Miller, & Edwin L. Fiscus, The Ozone Component of Global Change: Potential
Effects on Agricultural and Horticultural Plant Yield, Product Quality and Interactions with Invasive Species, 51 J.
Integrative Plant Biology, 337, 342-43 (2009). 215 EPA, Office of Air Quality Planning and Standards, Report to Congress on Hydrogen Sulfide Air Emissions
Associated with the Extraction of Oil and Natural Gas (EPA-453/R-93-045), (Oct. 1993) (“EPA Hydrogen Sulfide
Report”), available at http://nepis.epa.gov.
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The amount of untapped mineral land in Indian country is vast,216 and with more limits generally
on these industries coming in the near future, there is the potential for oil and natural gas
companies to expand their production into mineral and gas reserves in Indian country, thus
contributing to more minor source emissions overall, despite the ppm regulations required
already on newly created sources, even having gone through the regulation processes of the
Bureau of Land Management, and the EPA to obtain site-specific permits, or following the FIP.
While a minor concern currently, given the nature of the industry’s rapid resurgence, and calls
for its expansion into Indian country,217 there is potential for harmful emissions to have a
negative effect on local tribes’ air quality, which the EPA appears to recognize.218
National Tribal Air Association (0032): The NTAA understands that the Proposed Rule will
apply to true minor and minor modifications at existing true minor sources engaged in oil and
natural gas production, and will not cover existing sources, one primary reason being that the
focus of the Federal Indian Country Minor NSR Rule is on new and modified oil and natural gas
sources. Further, EPA indicates that, unlike NSR general permits and permits by rule, a federal
implementation plan (FIP) could be extended to existing sources, and that EPA is prepared to
address such sources, to the extent necessary, through area- or reservation-specific FIPs.
Unfortunately, EPA does not appear to want to go any further in regulating existing sources,
under this FIP nor any other FIP or regulatory action. The NTAA disagrees wholly with EPA on
this decision.
EPA acknowledges that a commenter on the Advance Notice of Proposed Rulemaking
“Managing Emissions from Oil and Natural Gas Production in Indian Country” indicated that
existing true minor source oil and natural gas facilities are having harmful impacts to the health
and welfare of Tribal members. Another commenter indicated that, in response to the Federal
Indian Country Minor NSR Rule, EPA Region 8 received approximately 6,300 registrations from
existing minor sources in the natural gas sector, demonstrating such sources are responsible for
considerable air pollution emissions within Indian Country, such as methane and VOCs,
pollutants that NTAA has already identified as having health and environmental impacts to
Indian Tribes. The NTAA finds it egregious that EPA would not want to regulate existing
sources beyond those for which it makes a determination that an area- or reservation-specific FIP
is necessary, considering that in the aggregate, such sources will surely have negative impacts on
Indian Country.
The NTAA recommends that EPA develop an approach for regulating existing true minor source
oil and gas facilities in Indian Country apart from the Proposed Rule that, not only takes into
account those parts of Indian Country where EPA finds an area- or reservation FIP is necessary
for existing sources, but addresses existing sources throughout all of Indian Country. Such an
approach could include the use of FIPs, general permits, or permits by rule.
216 Revenue, royalties paid to tribes, and output all expected to increase greatly in the future. Source: U.S. Bureau of
Indian Affairs, Oil and Gas Outlook in Indian Country, (visited November 1, 2015) Available at:
http://www.bia.gov/cs/groups/xieed/documents/document/idc1-024535.pdf. 217 Rob Bishop, Freeing Indians from Obama’s Grip, Wall Street Journal (Oct. 27, 2015). 218 Id. Roughly 56 million acres belonging to American Indians are “in trust” under the Bureau of Land
Management.
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QEP Resources, Inc. (0038): Finally, QEP supports EPA's decision to focus on new sources,
rather than existing sources, under the FIP. We agree that existing sources are best addressed in
the context of area-specific rulemakings, at a time when the individual need arises. Only with a
reservation-specific FIP can EPA take into account the complete inventory of emissions in an
area and the relevant modeled air quality impacts to determine which existing sources and how
such sources should be further regulated, while still allowing for reasonable further development.
The regulation of existing sources requires a deliberate, data-based and transparent process.
Take, for example, the Uinta Basin in Utah. Based on 2012-2014 EPA data, monitored ozone
levels in and Duchene Counties are above the new 2015 ozone National Ambient Air Quality
Standard ("NAAQS") of 70 ppb.219 An official nonattainment designation for the Basin may be
forthcoming at the end of 2017. After an official designation is made and after analysis of the
emissions inventory, modeling, and other data, as well as a determination of what controls or
measures are reasonable, EPA may then consider regulation of existing sources. Under the Clean
Air Act ("CAA"), regulations promulgated to address sources that "cause and contribute to
nonattainment" are triggered after official designation of nonattainment of a NAAQS. Regulating
existing sources in such an area requires area-specific analysis to identify the sources
contributing to a violation and the specific regulations necessary to address those issues. The
analysis is required to demonstrate the existence of a specific air quality concern, and the design
of a control program to address the concern will take time and is often an iterative process. As
the Agency has proposed, EPA should begin by implementing appropriate permitting
mechanisms that allow for efficient processing of new sources in Indian country. Then, EPA may
conduct an appropriate analysis of specific areas that are officially designated in violation of a
NAAQS, as prescribed in the CAA, to regulate existing sources.
Ute Indian Tribe (0039): The Ute Indian Tribe is also concerned about the cumulative air
quality impact from existing minor source emissions. Hundreds of unregulated existing minor
sources on the and Ouray Reservation harm the health and welfare of tribal members. Neither a
general permit nor a permit-by-rule would allow EPA to regulate these emissions. A FIP could
regulate existing sources. However, not all existing minor sources should be regulated in the
same manner and EPA should target those sources most directly contributing to air quality
degradation. If EPA chooses to regulate existing sources in a FIP developed specifically for the
Uintah and Ouray Reservation, it should apply control requirements to existing source emissions
in a flexible manner, gradually increasing enforcement as appropriate.
The Tribe would like to see the rule apply to the oldest and most inefficient minor sources.
Prioritizing existing minor sources could provide a solution that is not overly burdensome to oil
and gas operators on the Reservation. Without first meeting with the Tribe's Air Quality Division
to determine which sources should be included, a FIP that includes all existing sources would
compromise continued development on the Reservation, limiting both tribal revenue and
opportunities for tribal members. Oil and gas operations have created enormous opportunities for
the Tribe and its members. It is crucial that a reservation-specific FIP not unfairly hamper these
opportunities.
219 See http://www3.epa.gov/ozonepollution/pdfs/20151001datatable20122014.pdf.
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Gas Processors Association (GPA) (0040): In addition, GPA urges EPA to create a process for
existing sources to participate in the FIP on a voluntary basis. GPA agrees with EPA that the FIP
should not be extended to include all existing sources as a matter of law. [See 80 FR 56569-71.]
At the same time, however, there may be a number of reasons why a specific existing source
may wish to participate in the FIP on a voluntary basis. In light of the EPA’s conclusion that
compliance with the FIP will be protective of the environment and achieve air quality goals for
Indian Country, allowing existing sources to register and be regulated under the FIP should, on
balance, have a positive effect on air quality.
On a case-by-case basis, certain operators may have an interest in reconsidering their existing
operations at a site and electing to comply with the NSPS and NESHAPs included in the
proposed FIP. Furthermore, operators that also have new or modified sources that are subject to
the FIP may prefer to operate under a uniform regulatory program for all of their sources,
regardless of whether they are new, modified, or existing. Operating under a uniform regulatory
structure can reduce compliance costs and improve efficiency by reducing the number of unique
permitting requirements with which an operator’s employees must be trained to implement.
Further in some cases, voluntary participation by existing sources may provide a means to
improve air quality. For example, in near-nonattainment areas with significant existing oil and
natural gas production, a FIP that applies only to new sources may not have a significant impact
on air quality, given the large number of existing sources. However, existing sources could
potentially reduce their emissions and improve air quality by voluntarily complying with the FIP.
As explained above, individual sources may prefer a single regulatory program for new and
existing sources from an efficiency standpoint, even if the emissions limitations included in the
FIP are slightly more stringent for existing sources. Thus, GPA urges EPA to include an open
ended process for existing sources to voluntarily register to become subject to the FIP and
rescind existing minor permits, if necessary, at any time after the FIP is finalized.
In addition, GPA urges EPA to allow the FIP to be used to authorize minor modifications at
major sources. Minor modifications at major sources can involve the same equipment and
emissions profile as modifications at minor sources. Further, major sources that have already
undergone very-involved NSR permitting review at the time of construction should not be at a
disadvantage when undertaking minor modifications. Many state-level permitting programs
allow this type of approach. For example, the TCEQ allows major sources to utilize permits by
rule to authorize minor modifications.
Earthjustice et al. (0044): Environmental and Tribal Commenters support the adoption of a FIP
to regulate minor oil and gas sources in Indian Country based on the key advantage of a FIP: the
authority to regulate existing sources.220 Although EPA recognized this as the primary advantage
of a FIP in the ANPR, the Proposed FIP does not include any additional regulation of existing
sources. Given existing air quality problems caused by oil and gas development in Indian
Country—including many areas that already violate federal standards—prompt regulation of
existing sources is necessary. Moreover, regulation of existing sources will help to reduce
methane emissions and further the Obama Administration’s goal of reducing greenhouse gas
emissions to 17% below 2005 levels by 2020. As EPA recognizes and Colorado and Wyoming
220 See Coalition ANPR Comments at 13; EDF ANPR Comments at 12.
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have proven, there are available controls for controlling emissions from existing sources at
reasonable costs to the industry. Without requiring these measures nationwide, including in
Indian Country, EPA has not met its obligation to protect public health and welfare, and has not
fulfilled its trust responsibilities to Indian tribes. EPA should at least regulate existing sources
within Indian Country located within the boundary of a state that already regulates existing
sources, in order to create a level playing field and ensure that environmental harms are not
concentrated within Indian Country or in areas impacted by emission sources within Indian
country.
Although EPA proposes to address existing sources in reservation- or area-specific FIPs, this
approach will create further delay in addressing pressing air quality problems and will result in
an uneven playing field within Indian Country. Additionally, there is little guidance for when the
agency will prepare such FIPs. At a minimum, EPA should add specific criteria and triggers for
reservation-specific FIPs and increase opportunities for tribes, tribal members, and members of
the public to request preparation of a reservation- or area-specific FIP.
Earthjustice et al. (0044): EPA should regulate existing oil and gas sector sources nationwide in
order to prevent adverse impacts on public health and the environment. In the ANPR, EPA
solicited comments on the advantages and disadvantages of available approaches to manage oil
and gas sector emissions. [79 FR 32503.] The options the agency considered included a FIP, a
general permit, and a permit by rule. [Id.] EPA explained that the primary advantage of a FIP is
that it could cover existing sources. [Id. at 32514.] Both the Coalition and EDF ANPR comments
supported a FIP approach for this reason. [EDF Comments at 12; Coalition ANPR Comments at
13.] But in the Proposed FIP, EPA decided not to regulate existing sources (beyond those already
covered by the NESHAPs, which includes only some glycol dehydrators and process heaters. [80
FR 56557–58; 42 U.S.C. § 7412(d)(3)).]
By 2018, 90% of oil and gas sector emissions will be attributable to facilities that already existed
in 2011.221 Because many oil and gas emissions sources have long lifetimes and slow turnover,
EPA will not be able to sufficiently protect public health and welfare, ensure compliance with
the NAAQS, PSD, the Class I visibility protection mandate, and reduce greenhouse gas
emissions unless it requires existing sources to adopt some of the affordable emissions controls
which some states already require. [See Coalition ANPR Comments at 14–16.]
Earthjustice et al. (0044): There are many ways of regulating existing sources at reasonable
costs, some of which have already been adopted by states.222 Many states already regulate a
variety of existing sources. In February 2014, Colorado revised its oil and gas sector emissions
regulations, becoming the first state in the country to directly regulate methane emissions.223
221 EDF ANPR Comments at 8 (discussing ICF INT’L, Economic Analysis of Methane Emissions Reduction
Opportunities In The U.S. Onshore Oil And Natural Gas Industries At 1-1 (2014) (appx. at 1388)). 222 See, e.g., Comments of EDF et al. on Proposed Control Techniques Guidelines for the Oil and Natural Gas
Industry, Dkt. ID No. EPA-HQ-OAR-2015-0216 (Dec. 4, 2015) (“Proposed CTGs Comments”); EDF ANPR
Comments at 7; Coalition ANPR Comments at 19–28. 223 See Bruce Finley, Colorado Adopts Tougher Air Rules for Oil, Gas Industry, DENVER POST (Feb. 23, 2014),
http://www.denverpost.com/environment/ci_25213661/colorado-adopts-tougher-air-rules-oil-gas-industry;
Stephanie Paige Ogburn, Colorado First State to Limit Methane Pollution from Oil and Gas Wells, SCIENTIFIC
152
Among other things, Colorado adopted regulations governing several existing sources at
reasonable costs, including combustion devices, storage tanks, compressors, and well production
facilities.224 Additionally, Wyoming regulates existing sources in nonattainment areas. Wyoming
regulates all existing oil and gas well production facilities and compressor stations in the Upper
Green River Basin ozone nonattainment area. [Wyo. Admin. Code Env. AQ Ch. 8 § 6.]
California’s Bay Area Air Quality Management District regulates existing pneumatic
controllers.225
Analysis conducted by these state governments indicates just how reasonable the costs of these
requirements are. For example, Colorado calculated that replacing existing high-bleed pneumatic
devices with low-bleed pneumatic devices statewide would result in annualized cost-savings of
$1,084 over a fifteen-year period (assuming a 5% rate of return and natural gas value of
$3.5/mcf).226 As a result of complying with Colorado’s regulations, operators will collectively
save $10,172,256 a year. [Id. at 23.] Collectively, over a fifteen-year period, this accounts to total
cost-savings of $152,583,840. [See id.] Although capturing gas and using it for a beneficial
purpose is always preferable to flaring and should be required whenever and wherever possible,
there may be instances in which a source’s only option to avoid venting gas is to route it to a
completion control device. This can be done at a reasonable cost level, although this method will
not necessarily result in net cost savings for operators because it does not allow for the capture
and use of additional natural gas. Colorado calculated that the total annualized cost of installing
an auto-igniter control device at existing sources statewide was $475, for a cost effectiveness of
$272/ton of VOC emissions reduced. [Id. at 21.] Colorado calculated the annualized cost of
controlling VOC emissions from existing glycol dehydrators at a 6-tpy emissions threshold at
$6,286.80 per device, for a cost-effectiveness of $632/ton. [Id. at 24; see also Proposed Amended
NSPS Comments.] Again, we emphasize that capture and use of gas should always be the first
line of defense against venting; flaring should only be seen as an option of last resort against
venting.
EPA’s proposed CTGs also identify many emissions control strategies that can readily be
implemented for existing sources at reasonable costs, and that some states have already
implemented.227 EPA should consider adopting some of the affordable emissions control
strategies identified in the Draft CTG in the final rule.
Independent consultant ICF International has determined that 40% of methane emissions from
the oil and gas sector could be eliminated by 2018 at a total cost of one cent per mcf of gas AMERICAN (Feb. 25, 2014), http://www.scientificamerican.com/article/colorado-first-state-to-limit-methane-
pollution-from-oil-and-gas-wells/. 224 See Colo. Dep’t Pub. Health & Env’t, Revisions to Colorado Air Quality Control Commission’s Regulation
Numbers 3, 6, and 7: Fact Sheet at 1–4 (2014), https://www.colorado.gov/pacific/sites/default/files/AP_Regulation-
3-6-7-FactSheet.pdf (Appx. at 1503). 225 See Jimmy Cheng, Permit Handbook, Chapter 3.5: Natural Gas Facilities and Crude Oil 18
Facilities 5 (2013), http://hank.baaqmd.gov/pmt/handbook/rev02/PH_00_05_03_05.pdf (Appx. at 1507). 226 Colo. Air Pollution Control Div., Initiation Economic Impact Analysis: Regulation Number 7 at 22 (Nov. 13,
2013), https://www.colorado.gov/pacific/sites/default/files/062_R7-Initial-EIA-request-11-21-13-26-pgs-062_1.pdf
(APCD EIA) (Appx. at 1514). 227 See, e.g., Proposed CTGs at 6-19 (discussing Colorado’s requirement that operators install no- or low bleed
pneumatic controllers at all new and existing operations statewide); see also Proposed CTGs Comments.
153
produced. [ICF INT’L at 1-1.] According to ICF, that 40% reduction would save the United
States as a whole $100 million annually. [Id. at 1-1 to 1-2.] ICF’s report breaks down costs and
cost savings of reducing emissions from existing sources by equipment and segment of the oil
and gas production process. [See id. at 4-10.] This demonstrates that reducing emissions from
some specific existing sources, such as capturing gas from existing centrifugal compressors, can
save operators as much as $5/mcf.
CATF has also conducted extensive analysis of strategies to reduce emissions from existing
sources.228 Its analysis shows that EPA can make significant gains in reducing methane
emissions by regulating existing sources, and that proven technologies and practices can reduce
methane pollution from existing sources by up to 1,350,000 metric tons per year. [Id. at 3.]
Existing pneumatics and compressors account for 30% of the oil and gas sector’s methane
emissions. [Id. at 18.] CATF identified technologies to reduce methane pollution from existing
pneumatics and compressors by 45% and 85%, respectively. [Id. at 40.] Overall, CATF found its
recommendations to be extremely cost-effective. The average abatement cost of the measures
recommended in CATF’s report was only $8 to $18 per metric ton of carbon dioxide equivalent,
which is just $0.04 to $0.09 per mcf of natural gas sold. [Id. at 44.] And some specific emissions
reductions at existing sources are even more cost effective—CATF estimates that operators will
save $200 per metric ton of avoided methane pollution from reduced emissions from
compressors in the processing segment. [Id. at 30.]
Earthjustice et al. (0044): Under the CAA, EPA is “authorized to treat Indian tribes as States,”
and must promulgate regulations “specifying those provisions of [the CAA] for which it is
appropriate to treat Indian tribes as States.” [42 U.S.C. § 7601(d)(1)(A), (2).] Pursuant to this
requirement, EPA issued the Tribal Air Rule (TAR). [63 FR 7254 (Feb. 12, 1998).] In this rule,
EPA concluded that it was not appropriate to treat tribes as states under CAA §§ 110(a)(1) and
111(c)(1), which govern SIP submission and approval. [40 CFR § 49.4(a), (d).] EPA determined
that it was not appropriate to subject tribes to the strict deadlines for implementation plan
development set by §110(c)(1).
But this does not mean that there are no implementation plans for tribal lands—EPA still retains
the responsibility to protect air quality in Indian Country, just as it does nationwide. [See 76 FR
38752–53.] As EPA itself explained, including § 110(c)(1) on the list does “not relieve [EPA] of
its general obligation under the CAA to ensure the protection of air quality throughout the nation,
including throughout Indian Country. In the absence of an express statutory requirement, EPA
may act to protect air quality pursuant to its gap-filling authority under the Act as a whole.”
[Id.]229
When EPA determines that treating tribes as states is inappropriate, the CAA gives EPA
discretion to create regulations or otherwise directly administer those provisions of the CAA to 228 David McCabe et al., Waste Not: Common Sense Ways To Reduce Methane Pollution From The Oil And
Natural Gas Industry (2015), http://www.catf.us/resources/publications/files/WasteNot.pdf (Appx. at 2142). 229 In addition to EPA’s general obligation to ensure air quality protection nationwide, EPA also has a specific
obligation to Indian Country under its trust responsibilities. See Nance v. EPA, 645 F.2d 701, 711 (9th Cir. 1981)
(“[A]ny Federal government action is subject to the United States' fiduciary responsibilities toward the Indian
tribes.”).
154
“achieve the appropriate purpose.” [42 U.S.C. § 7601(d)(4).] Under this § 7601(d)(4) authority,
the agency “shall promulgate without unreasonable delay such Federal implementation plan
provisions as are necessary or appropriate to protect air quality.230, 231 Thus, EPA has ample
authority to regulate existing source in Indian Country to fulfill the purposes of the Act.
Moreover, when EPA issues a FIP in Indian Country, it is standing in the shoes of a tribe.232 As
discussed above, states can (and do) regulate existing sources. Tribes have similar authority to
regulate existing sources within their boundaries if doing so will protect the health, safety, and
welfare of their people, so long as such regulations do not conflict with any act of Congress.233
Thus, when standing in the shoes of a tribe, EPA also has authority to regulate existing sources.
EPA has already issued one reservation-specific FIP that covers new, modified, and existing oil
and gas production operations at FBIR. [78 FR 17836 (Mar. 22, 2013).] As EPA explained,
regulating existing sources through the FBIR FIP furthered the agency’s purposes under the
CAA: “Our primary goal, as always is with regard to regulations developed under the CAA, was
to ensure increased protection to the public health and the environment. This FIP provides these
benefits through promulgation of enforceable requirements to limit VOC emissions from
[existing] facilities.”234, 235
Earthjustice et al. (0044): Several industry commenters on the ANPR questioned EPA’s legal
authority to regulate existing sources in Indian Country. None of their comments have merit. For
example, some industry commenters argue that EPA cannot issue a FIP covering existing sources
because the agency has not identified a gap that needs filling.236 But as explained above, there is
no existing regulatory mechanism governing NSR at sources in Indian Country, and SIPs
governing regulations for both attainment and nonattainment areas do not apply in Indian
230 .” 40 CFR § 49.11(a) (emphasis added); see also 42 U.S.C. § 7602(y) (defining a FIP as “a plan (or portion
thereof) promulgated by [EPA] to fill all or portion of a gap or otherwise correct all or a portion of an inadequacy in
a SIP”). 231 EPA need not issue a FIP if it instead approves a Tribal Implementation Plan (TIP). 40 CFR § 49.11(a). But
“there are . . . no currently approved TIPs specifically applying to the issuance of general permits with respect to the
reduction of emissions related to oil and natural gas production facilities.” 80 FR 56562. Accordingly, EPA has
discretion to issue a FIP governing NSR permitting for minor oil and gas production facilities nationwide. See
Michigan v. EPA, 268 F.3d 1075, 1079 (D.C. Cir. 2001) (“In the absence of a tribal implementation plan, EPA may
provide a federal operating plan for lands under the tribe's jurisdiction.”). 232 ODEQ, 740 F.3d at 193 (explaining that EPA’s jurisdiction to regulate air quality is concurrent with the
jurisdiction of the tribe in whose shoes EPA is standing). 233 See Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (explaining that tribes retain their rights
as sovereigns “unless and until Congress acts” to diminish their authority); see also Sandra D. Benischek, Clean Air
in Indian Country: Regulation and Environmental Justice, 12 VILL. ENVTL. L.J. 211, 214 (2001) (Appx. at 1540)
(discussing the ability of tribes to regulate existing sources). 234 78 FR 17838; see also Ariz. Pub. Serv. Co., 562 F.33d at 1125–26 (upholding FIP that applies to an existing
source located within an area of Indian Country that is designated as attainment). 235 EPA has also already issued the tribal NSR rule, which is a nationally applicable FIP governing NSR for non-oil
and gas sources in Indian country. 76 FR 38748 (July 1, 2011) (codified at 40 CFR §§ 49.151–72). A reviewing
court declined to address whether EPA exceeded its authority by issuing this nationally applicable FIP. See ODEQ,
740 F.3d at 189. 236 See, e.g., Comments of QEP Energy Company on Managing Emissions from Oil and Natural Gas Production in
Indian Country; Docket ID Number EPA-HQ-OAR-2011-0151 at 2–3 (Aug. 18, 2014) (“QEP Comments”).
155
Country. The industry commenter claims support from Louisiana Public Service Commission v.
FCC, 476 U.S. 355, 374 (1986). [QEP Comments at 3.] But this case involves an FCC regulation
governing the depreciation of telephone plants and equipment. [La. Pub. Serv. Comm’n, 476
U.S. at 358.] It has nothing to do with EPA’s authority to directly implement the CAA in Indian
Country. The cited page includes a general truism that “[a]n agency may not confer power upon
itself.” [Id. at 374.] Yet, EPA would not be conferring power upon itself if it chose to regulate
existing sources through a FIP. EPA would be exercising the power that Congress has conferred
upon it to “directly administer such provisions [which EPA has determined it is inappropriate for
tribes to be treated as states] so as to achieve the appropriate purpose.” [42 U.S.C. § 7601(d)(4).]
Nothing in the language of the statute limits EPA’s authority to regulate new and modified
sources.
Earthjustice et al. (0044): Industry commenters also argue that EPA lacks authority to regulate
existing sources because doing so is beyond the scope of the 1998 TAR and the tribal NSR rule,
which explicitly only applied to new and modified sources.237 But nothing prevents EPA from
accomplishing two regulatory purposes in a single FIP. Although EPA has elected in the
Proposed FIP to conclude that compliance with the proposed FIP will also constitute compliance
with minor source NSR permitting, [see 80 FR 56558], nothing prevents EPA from addressing
other related issues.
Relatedly, industry commenters argue that EPA can only take action to carry out the statutory
directives contained in 42 U.S.C. §§ 7410(a)(2)(C) and 7601(d). [See, e.g., QEP Comments at 3.]
They rely on a D.C. Circuit case which states that “EPA cannot rely on its general authority to
make rules necessary to carry out its functions when a specific statutory directive defines the
relevant functions of EPA in a particular area."238 But § 7601(d) gives EPA extremely broad
authority to “directly administer” any provision of the CAA that EPA determines it is not
appropriate for tribes to carry out themselves.
An industry commenter also claimed that “The D.C. Circuit has twice rejected EPA’s attempt to
use 301(a) and 304(d) to directly regulate sources in Indian Country outside of its limited
authority under the CAA.”239 This is not true. Both ODEQ and Michigan concerned EPA’s
authority to implement federal rules in areas for which Indian Country status was in question.
[ODEQ, 740 F.3d at 189; Michigan, 268 F.3d at 1078.] Neither case casts any doubt on EPA’s
authority to issue FIPs in order to implement the CAA in areas clearly under tribal jurisdiction.
Similarly, industry commenters highlighted language from a D.C. Circuit opinion concluding
that the word “necessary” in another CAA section CAA limited EPA’s discretion.240 The issue in
Virginia was whether the 1990 CAA Amendments granted EPA independent authority to
condition approval of ozone SIPs on adoption of specific control technologies. [Id. at 1410.] The
court held that while § 7410 did not provide this authority, § 7511c did. [Id.] Nothing about the
case impacts the scope of EPA’s authority to determine that it is “necessary” to issue a FIP for
tribal lands under the terms of EPA’s own regulation, 40 CFR § 49.11(a).
237 See, e.g., QEP Comments at 3 (discussing 63 FR 7263 and 76 FR 38749). 238 Am. Petrol. Inst. v. Browner, 52 F.3d 1113, 1119 (D.C. Cir. 1995). 239 QEP Comments at 3–4 (citing ODEQ, 740 F.3d at 193; Michigan, 268 F.3d at 1082). 240 See QEP Comments at 4 (discussing Virginia v. EPA, 108 F.3d 1397, 1409 (D.C. Cir. 1997)).
156
Finally, some industry commenters raised dicta from a footnote in Luminant Generation
Company v. EPA, 675 F.3d 917, 932 n.12 (5th Cir. 2012), which states that “[t]he provisions of
the CAA that apply to minor NSR require state regulation only insofar as is necessary to assure
achievement of the NAAQS.” [See, e.g., QEP Comments at 4.] This dicta is part of a footnote in
which the court muses about whether EPA might be able to disapprove of a SIP provision on
grounds that were not at issue in the case.241 It has no bearing on EPA’s broad regulatory
authority to issue a FIP when standing in the shoes of a tribe, a completely separate inquiry from
what a state is required to do under one section of the CAA. Moreover, the statement does not
limit EPA’s ability to regulate existing sources through minor NSR if doing so is necessary to
achieve the NAAQS. Given that many areas of Indian Country are already in nonattainment
despite the six regulations already being in place, it may well be necessary for EPA to regulate
existing sources in other areas in order to prevent them from dipping into nonattainment.
Earthjustice et al. (0044): EPA acknowledges in the Proposed FIP that “managing emissions
from existing oil and natural gas sources in some areas of Indian Country also may be important”
in order to protect public health and the environment. [80 FR 56570.] EPA also expressed
“concern that the rapid growth of the oil and natural gas production segment . . . could result, or
in some cases already has resulted, in adverse air quality impacts.” [Id.] As EPA acknowledged
in the ANPR, “[a]vailable evidence indicates that cumulative emissions from existing sources in
the oil and natural gas production industry are causing elevated ambient ozone levels in areas
outside of Indian Country . . . [and] air quality in Indian Country may be similarly at risk of
reaching unhealthy levels.” [79 FR 32513.] Although there is some uncertainty due to the lack of
monitoring and other data, EPA acknowledges that “air quality levels may violate the 8-hour
NAAQS in some areas and also may cause increases in ozone concentrations in area already
violating the 8-hour ozone NAAQS.” [Id.]
In fact, many areas of Indian Country already have design values which put them in
nonattainment with the ozone NAAQS, and others are approaching the NAAQS.242 Regulation of
existing sources is necessary to remedy these air quality concerns. EPA regulations provide that
the agency “shall promulgate without unreasonable delay such Federal implementation plan
provisions as are necessary or appropriate to protect air quality” in Indian Country.243 Ensuring
compliance with the NAAQS—which EPA sets to protect public health and the environment—is
necessary and appropriate.
Furthermore, the existence of a large number of unregulated existing sources that have not
undergone NSR review makes it necessary for EPA to regulate them in order to ensure that they
do not pose a threat to human health or the environment. In the FBIR FIP, EPA “determined that
existing facilities should also be subject to the FIP . . . given the number of existing facilities that
were operating as unregulated sources.” [78 FR 17841.] EPA found that regulating these sources
was necessary to achieve its goal of “protect[ing] the public health and the environment by
241 See United States v. Barela, 797 F.3d 1186, 1190 (10th Cir. 2015) (“[S]tatements and comments in an opinion
concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case
in hand.” (quotations omitted)). 242 See supra pp. 5–8; accord 79 FR 32508–13; 80 FR 56570; EDF ANPR Comments at 2–8; Coalition ANPR
Comments at 2–12. 243 40 CFR § 49.11(a); see also 42 U.S.C. § 7602(y) (requiring EPA to “provide for attainment”).
157
providing those living on the Reservation the same level of air quality and health protection as
people living outside the Reservation.” [Id. at 17,839.] The same is true throughout Indian
Country. Moreover, emissions control technologies that are applicable to existing sources have
reasonable costs, are readily available, and are already required in some states such as Colorado.
[79 FR 32513; 80 FR 56569.] Therefore, it makes sense for EPA to regulate existing sources
throughout Indian Country.
Earthjustice et al. (0044): Regulation of existing sources is also warranted given the
uncertainties associated with air quality in Indian Country.244 Given the existing data showing
serious air quality problems associated with oil and gas development is some areas of Indian
Country and the lack of monitoring data in other areas, EPA should regulate existing sources
now, rather than exposing tribal members, other residents, and natural and cultural resources to
harmful air pollution for additional years while the agency installs new monitors and gathers
data.
Regulation of existing sources will also further the White House’s goal of reducing methane
emissions from the oil and gas sector. In March 2014, the White House identified reducing oil
and gas sector methane emissions as a key part of the Administration’s strategy to reduce
greenhouse gas emissions 17% by 2020. [See White House at 1.] In the ANPR, EPA
acknowledged that reducing methane from the oil and gas sector is a key part of the Obama
Administration’s President’s Climate Action Plan. [79 FR 32504–05.] Given that by 2018, 90%
of methane emissions from the oil and gas sector will be from existing sources, [see supra p. 18],
the earlier that EPA acts to reduce methane emissions from those sources, the more feasible it
will be for the Administration to achieve its climate goals.
Even if EPA chooses not to regulate existing sources throughout Indian Country, it should at
least regulate existing sources located in states that already do so. EPA notes in the Proposed FIP
that “[a]ddressing existing sources through a FIP could be especially useful in areas of Indian
Country for which surrounding state requirements apply to existing oil and natural gas sources
located on lands that are within a state’s jurisdiction.” [80 FR 56570.] Putting state and tribal
lands on a level playing field will protect the health of tribal members by avoiding a race to the
bottom that concentrates pollution on tribal lands. EPA acknowledged in the FBIR FIP that it
was especially important to regulate existing sources because North Dakota already did so on the
surrounding state lands. [See 78 FR 17837, 17,840.] EPA intended to “level the health
protections between the residents living on the FBIR and the residents living in the State of
North Dakota.” [78 FR 17841.] EPA should do the same here.
In certifying compliance with Executive Order 12,898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, EPA claims that
the Proposed FIP will not have such a disproportionate impact. [80 FR 56572.] But this is not the
case. On tribal lands that are located within the boundaries of states that already regulate existing
sources, like Colorado, tribal members will face additional burdens from pollution that their
244 See supra pp. 8–9; see also Phillip M. Kannan, The Precautionary Principle: More Than A Cameo Appearance in
United States Environmental Law?, 31 WM. & MARY ENVTL. L. &POL'Y REV. 409, 441–47 (2007) (Appx. at
1557) (discussing how the precautionary principle is embedded within the Clean Air Act).
158
neighbors who live on state lands do not face. Accordingly, EPA should at least regulate existing
sources on tribal lands in located within states that already regulate existing sources.
Earthjustice et al. (0044): EPA should define “necessary or appropriate” by identifying more
specific criteria for when reservation-specific FIPs will be issued. One such criterion would be
that the ozone concentrations in an area of Indian Country (or the surrounding area under state
jurisdiction) are close to the NAAQS. Given the extensive and robust body of scientific evidence
establishing that ozone causes a wide range of adverse impacts to human health at levels of 60
ppb, design values above 60 ppb should be the minimum criterion.245
EPA should also base its decision on the availability of two years of valid monitoring data to
prevent substantial delay. And EPA should consider data from all available, reliable monitors,
such as those operated by tribes or the industry, regardless of whether EPA has certified them as
regulatory monitors. Other factors that can guide EPA’s decision to implement reservation-
specific FIPs include public health studies showing health impacts, such as increased asthma
rates, hospitalizations, and premature deaths. EPA should also consider the current and projected
levels of oil and gas production on or near tribal lands.
Earthjustice et al. (0044): When EPA develops a reservation-specific FIP, it should conduct
modeling so that tribes and operators can understand how particular sources will contribute to
degradation of air quality. Tribal governments can use this modeling data to develop their own
tribal air quality plans, or to apply for treatment as a state status.246 Such modeling data will also
be crucial to other land and minerals management agencies, including BLM, the Forest Service,
and the Bureau of Indian Affairs (“BIA”), which are tasked with assessing the environmental
impacts of proposed oil and gas development projects. EPA should also request available
monitoring data from past National Environmental Policy Act (“NEPA”) analyses conducted by
these surface management agencies during the process of developing reservation-specific FIPs.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Because a FIP is the
only method by which EPA may regulate existing sources, Environmental Commenters support
the development of a FIP. As discussed in the ANPR, EPA has authority to develop a FIP for
existing sources within Indian country to protect air quality. [79 FR 32513-14; 42 U.S.C. §
7601(a), (d)(4).] Furthermore, as discussed in more detail below, there are cost-effective
pollution control measures that will benefit public health and the environment that should be
applied to new and existing sources within Indian country. This approach is particularly
warranted given the scarcity of monitoring within Indian country. We further recommend that
EPA establish a requirement to periodically review (not less than every five years) the FIP
emission limits and controls described below to ensure continued reflection of the best available
cost-effective control.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): Regulation of existing
sources is necessary to fulfill the goal President Obama stated in his 2012 State of the Union
Address to develop shale gas resources “without putting the health and safety of our citizens at
risk.” It would also help to fill gaps left by EPA’s regulatory efforts to date. In his Blueprint for a
245 See Ozone NAAQS Revisions Comments at 20–24 (documenting scientific evidence). 246 See Kronk Warner, supra n. 14 (discussing barriers to tribes applying for treatment as a state status).
159
Secure Energy Future, President Obama charged the Secretary of Energy’s Advisory Board with
recommending advice to agencies on practices for shale development to ensure protection of
public health and the environment.247 In 2011, the Advisory Board’s Natural Gas Subcommittee,
made up of a balanced group of industry and environmental experts, recommended that
“measures should be taken to reduce emissions of air pollutants, ozone precursors, and methane
as quickly as practicable. The Subcommittee support[ed] adoption of rigorous standards for new
and existing sources of methane, air toxics, ozone precursors and other air pollutants from shale
gas operations.”248
Although EPA adopted controls for new and modified sources as part of New Source
Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants
(NESHAPS) for the oil and natural gas sector, it did not heed the Advisory’s Board’s
recommendations about regulating methane or existing sources.249 Likewise, the Indian Country
Minor NSR applies only to new and modified sources. Therefore, almost all of the current
sources located within Indian country remain unregulated.
At the same time, there is substantial evidence demonstrating that existing oil and gas sources are
responsible for considerable air pollution emissions within Indian country. For example,
according to the Department of the Interior’s Office of Indian Energy and Economic
Development (IEED), since 2002, annual income from energy mineral production on Indian
lands has increased by more than 113%. [79 FR 32509.] EPA acknowledges there is substantial
existing oil and gas development in the Uinta, San Juan, Wind River, and Williston Basins. [Id.
at 32508-09.] In response to the requirement in the Indian Country Minor NSR rule for existing
minor sources to register with the appropriate EPA office, Region 8 received more than 6,400
registrations from true minor sources in the oil and natural gas sector. [79 FR 32510.]
This existing equipment and infrastructure is responsible for significant national, regional, and
localized pollution. [See supra Section II.] A recent report by ICF International estimates that
sources existing as of 2011 will contribute 2.7 million metric tons of VOC in 2018.250 Regions
247 White House, Blueprint for a Secure Energy Future (March 30, 2011), available at
http://www.whitehouse.gov/sites/default/files/blueprint_secure_energy_future.pdf. 248 U.S. DOE, Secretary of Energy Advisory Board, Shale Gas Production Subcommittee 90-Day Report at 2, 15
(Aug. 18, 2011), available at http://www.shalegas.energy.gov/resources/081811_90_day_report_final.pdf (emphasis
added); U.S. DOE, Secretary of Energy Advisory Board, Shale Gas Production Subcommittee Second 90-Day
Report at (Nov. 18, 2011), available at http://www.shalegas.energy.gov/resources/111811_final_report.pdf. 249 See Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for
Hazardous Air Pollutants, 77 FR 49490 (Aug. 16, 2012); U.S. DOE, Secretary of Energy Advisory Board, Shale Gas
Production Subcommittee Second 90-Day Report at 4, 5 (Nov. 18, 2011), available at
http://www.shalegas.energy.gov/resources/111811_final_report.pdf (recognizing that EPA’s proposed rules “fall
short” because they failed to propose regulating methane or existing sources). The final rule did not fix these
deficiencies. 250 ICF International, Economic Analysis of Methane Emission Reduction Opportunities in the U.S. Onshore Oil and
Natural Gas Industries (March 2014), at 3-3, available at
http://www.edf.org/sites/default/files/methane_cost_curve_report.pdf). Calculated by adding methane emissions
from the Gas Production, Gathering and Boosting, Gas Processing, Gas Transmission, Gas Storage, and Oil
Production segments, and converting them to VOC equivalent using the VOC/methane ratios derived the Oil and
Gas Regulatory Impact Analysis, Regulatory Impact Analysis: Proposed New Source Performance Standards and
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like the Uinta Basin are already exceeding the ozone NAAQS, and the lack of extensive air
quality monitoring means there may be other NAAQS violations that have yet to be identified.
Even in regions where there are not yet NAAQS violations, emissions from oil and gas sources
contribute to elevated ozone levels and HAPs emissions that harm public health. Therefore,
EPA’s approach must reduce emissions from existing sources in order for EPA to meet its duty
to protect public health and welfare.
Controlling existing sources would also help to improve visibility impairment and nitrogen
deposition in treasured landscapes, like national parks and wilderness areas.251 Existing source
controls will also have a co-benefit of methane reduction, reducing the climate impacts of oil and
gas development and reducing waste of valuable natural gas. Furthermore, regulation of existing
sources will level the playing field across all areas of Indian country and may provide for a
“margin of growth” that will not otherwise be possible.
There are very cost-effective measures for controlling emissions from existing sources. [See
infra Section III-F.] For example, in February 2014, Colorado adopted additional controls for
existing sources, including pneumatic controllers and storage tanks. Colorado also adopted
greatly expanded leak detection and repair requirements. The state’s analysis found that these
control measures were very cost effective and, in some cases, provide the industry with cost
savings based on sale of the recovered natural gas. Therefore, at a minimum, EPA’s approach
should include the regulation of existing sources through a FIP.
Coalition ANPR Comments – referenced by Earthjustice et al. (0044): In light of the
cumulative impacts from the emission sources associated with oil and gas development,
including sources that are currently operating, we recommend that EPA regulate all existing
sources and equipment discussed below without promulgating an applicability threshold. Many
of the emissions from “minor” sources associated with oil and gas development occur from
smaller emissions sources. Individually, a particular emission source may not emit large amounts
of a pollutant. But given the massive quantities of the individual sources, and the difficulty
obtaining consistent emissions information from so many sources located in remote areas, it does
not make sense – and indeed would be very detrimental to public health and welfare – to ignore
or exempt any existing sources. As such, Environmental Commenters recommend that the
pollution controls described below in Section III.F apply to all new and existing sources
regardless of whether any applicability threshold is met. Simply being a covered source emitting
a regulated NSR pollutant warrants installation of the respective pollution controls or practices.
Moreover, Environmental Commenters recommend that EPA does not exempt sources that
already comply with a new source performance standard (NSPS) or national emission standards
for hazardous air pollutants (NESHAP). If those standards were adequate, the current problem
with emissions from existing sources would not exist. The controls that EPA should promulgate
Amendments to the National Emissions Standards for Hazardous Air Pollutants for the Oil and Natural Gas
Industry, (July 2011), at 3-16, Table 3-3 (hereafter “2011 RIA”). 251 Environmental Commenters note that, while regulating existing sources here would help visibility impairment in
some areas, it does no relieve EPA or the states from following the statutory requirements to develop a long-term
strategy to provide controls on human-induced haze pollution in order to restore natural visibility conditions at a
reasonable rate of progress. See 42 U.S.C. § 7491(b)(2)(B); 40 CFR § 51.308(d)(3).
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via a FIP should go beyond what the existing NSPS or NESHAP currently require and sources
covered under those standards should not be exempted.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): It is essential that EPA
address emissions from existing oil and gas sources in this rulemaking. According to the ICF
Report, oil and gas facilities existing in 2011 will contribute 90 percent of projected methane
emissions by 2018. Of the three options EPA presented in the ANPR, a FIP is the only tool
capable of controlling the significant emissions from existing sources. Further, as EPA
recognized in the ANPR, “a number of cost-effective emission reduction measures could be
applied to existing emissions units to balance new growth by mitigating the potential for adverse
air quality impacts from overall increases in emissions.” [ANPR, 79 FR 32516.]
EDF ANPR Comments – referenced by Earthjustice et al. (0044): Another important
conclusion of the ICF study is that it is essential to deploy these cost-effective solutions at
existing sources of pollution in order to significantly reduce emissions. According to ICF,
approximately 90% of emissions from the oil and gas sector in 2018 will be attributable to
facilities that were already in existence as of 2011. Given the long lifetime and slow turnover of
many facilities and equipment types in this sector, any rule EPA adopts pursuant to this ANPR
will not be sufficiently protective of public health without addressing existing sources.
EDF ANPR Comments – referenced by Earthjustice et al. (0044): EPA has flexibility to design
a FIP that fully remedies the gap in regulation of oil and gas sources by including common-
sense, comprehensive standards for both new and existing sources – which is imperative for
reducing emissions from the oil and gas sector, as noted in section II of these comments. When
issuing a FIP, EPA “stands in the shoes” of a state and assumes the same rights and duties that
would ordinarily fall to the state. This includes the authority and responsibility provided in
section 110(a)(2) of the Act to adopt and enforce such pollution control measures as may be
needed to fulfill the purposes of the Act, including measures that apply to existing facilities.
Consistent with this broad mandate, EPA has issued several recent FIPs for Indian country,
including the FIP applicable to oil and gas facilities in the Ft. Berthold Indian Reservation, that
include emission control requirements for existing sources.252
Western Energy Alliance (0045): Second, we support EPA’s decision to focus on new sources,
rather than existing sources, under the FIP. We agree that existing sources are best addressed in
the context of area-specific rule-makings, at a time when the individual need arises.
American Petroleum Institute (API) (0046): API supports EPA’s decision not to propose
standards for existing O&G sources located in or near nonattainment areas. We agree with the
Agency that such standards can and should be developed on a regional basis in a way that
reflects local air quality characteristics and needs.
252 See, e.g., Approval and Promulgation of Federal Implementation Plan for Oil and Natural Gas Production
Facilities Fort Berthold Indian Reservation, 78 FR 17836, at 17,841 (March 22, 2013), codified at 40 CFR §§
49.4161–49.4168 (covering existing minor oil and gas sources) [hereinafter Fort Berthold FIP]; Source-Specific
Federal Implementation Plan for Four Corners Power Plant, Navajo Nation, 72 FR 25698 (May 7, 2007) (FIP for
existing source); Source Specific Federal Implementation Plan for Navajo Generating Station, Navajo Nation, 75 FR
10174 (Mar. 5, 2010) (FIP for existing source).
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State of Utah, Office of Energy Development (0047): Market conditions and falling commodity
prices have created significant headwind for the oil and gas industry and recent declined activity
is expected to continue. During this sensitive period, unnecessary regulatory costs would be
particularly damaging to the viability of the oil and gas industry, which is the key economic
driver in the Uinta Basin. To ensure that the ICMNSR and FIP and its implementation do not
unnecessarily burden industry, we ask the EPA to address existing sources only after an effective
program for new sources is established, and through a more deliberate and inclusive process that
includes current air quality data and emissions inventories.
State of Utah, Office of Energy Development (0047): The unique meteorology and conditions
present in the Uinta Basin have created significant challenges to identifying the most effective
approaches to reducing ozone concentrations. The State of Utah has invested significant time and
resources to better understand and address the complex and unique issues of wintertime ozone
formation and mitigation in the Uinta Basin. While much progress has been made to identify the
most effective approaches to mitigating wintertime ozone, many questions remain. Recent
dramatic shifts in market-place conditions and commodity prices will likely create significant
changes to the Basin’s emissions profile.
Along with updated science and a dramatically different marketplace, oil and gas production and
controls have changed substantially since the last inventory was conducted a decade ago. To
reflect these changes, an updated inventory of emission sources would ensure that effective and
least-cost approaches are properly assessed. The EPA should complete an updated emission
inventory before imposing significant new retrofit costs on industry.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #39: Several commenters (0027, 0032, 0038, 0039, 0040, 0044, 0045, 0046, 0047)
submitted comments on the subject of regulating existing sources in the proposed FIP. Three
commenters recommended that the EPA regulate existing sources; one commenter recommended
that the EPA create a voluntary process for existing sources to register and to be regulated under
the FIP; three commenters agreed with the EPA’s position not to regulate existing sources; and
one commenter recommended that the EPA regulate existing sources only in the context of area-
specific rules. One of the commenters favoring the regulation of existing sources noted that there
is substantial evidence demonstrating that existing oil and natural gas sources are responsible for
considerable air pollution emissions within Indian country, and that a FIP is the only method by
which the EPA may regulate existing sources. This commenter further noted that many areas of
Indian country are already in nonattainment despite the six regulations already in place, and that
it might be necessary for the EPA to regulate existing sources in other areas in order to prevent
them from slipping into nonattainment. One of the commenters recommended that the EPA
develop an approach for regulating existing true minor source oil and natural gas facilities in
Indian country apart from the Proposed Rule that not only takes into account those parts of
Indian country where the EPA finds an area- or reservation FIP is necessary for existing sources,
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but addresses existing sources throughout all of Indian country. Such an approach could include
the use of FIPs, general permits, or permits by rule.
The three commenters requesting that the EPA not regulate existing sources recommended that
regulation of existing sources should be addressed in the context of area-specific rulemakings,
developed on a regional basis in a way that reflects local air quality characteristics, current air
quality data, and emissions inventories. One of the commenters requesting that the EPA address
existing sources in the context of area-specific rulemakings suggested that not all existing minor
sources should be regulated in the same manner; the EPA should target those sources most
directly contributing to air quality degradation. This commenter further recommended that,
should the EPA choose to regulate existing sources, the EPA should apply control requirements
to existing source emissions in a flexible manner, gradually increasing enforcement as
appropriate.
Response #39: The purpose of the proposed FIP was to address pre-construction permitting for
new and modified true minor sources locating or located in reservation areas of Indian country
and other areas of Indian country over which a tribe has jurisdiction in order to satisfy the
requirements of the Federal Indian Country Minor NSR rule. We chose this approach both
because of our concern that the number of applications for source-specific permits from true
minor sources in the oil and natural gas sector would overwhelm the available resources of the
Reviewing Authority and to provide consistency in the regulation of such sources throughout the
areas where the Federal Indian Country Minor NSR rule is in effect. The proposed FIP does not
address existing sources, unless they undergo modification. We see no reason to change that in
the final FIP. Rather, as discussed above, we believe the best way to address emissions from
existing sources is through a reservation- or area-specific FIP if and when we determine that one
is necessary or appropriate to protect air quality. In addition to satisfying the requirements of the
Federal Indian Country Minor NSR rule, we believe that the final FIP addressing only new and
modified true minor sources in the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector is sufficient to protect air quality in all of the areas to
which it applies regardless of the current level of oil and natural gas production and natural gas
processing activities in any particular area. The exception to this statement is the Uintah and
Ouray Reservation in Utah. For the Uintah and Ouray Reservation, we have sufficient concerns
with the impact of emissions from existing sources that we plan to propose a separate
reservation-specific FIP addressing such sources. Similarly, we will consider promulgating such
reservation- or area-specific FIPs in the future as we believe necessary or appropriate to protect
air quality.
Comment #40: One commenter (0044) recommended that specific existing oil and natural gas
production equipment be regulated under the proposed FIP, including: reciprocating
compressors, centrifugal compressors, liquids unloading at existing wells, glycol dehydrators,
liquid storage vessels, and pneumatic controllers.
The commenter recommended that the EPA require: (1) the replacement of the rod packing of
existing reciprocating compressors every 36 months or 26,000 hours of operation; (2)
replacement of wet seal configurations on centrifugal compressors with one that utilizes dry seals
or that captures the emissions from the oil degassing unit; (3) that plunger lifts be required for all
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liquids unloading; (4) that dehydrators control VOC by 95 percent with a condenser; (5) that
storage vessels capture VOC emissions via a closed vent system and route those emissions to a
beneficial use; and (6) that high bleed pneumatic controllers be replaced with low-bleed
controllers except when technically necessary.
Response #40: As stated above, the purpose of the FIP, as proposed and as finalized herein, is to
satisfy the requirements of the Federal Indian Country Minor NSR rule, and not to regulate
existing sources.
Comment #41: One commenter (0044) recommended that the proposed FIP be revised to require
regular Leak Detection and Repair (LDAR) surveys at all new and existing facilities, including
well pads, other production facilities, gathering compressor stations, and natural gas processing
plants that are not covered under 40 CFR part 60, subparts KKK and OOOO. This commenter
recommended that instrument-based LDAR surveys be carried out quarterly on all sources in the
production segment and that auditory, visual, and olfactory inspections should be performed
monthly.
Response #41: The EPA proposed to add LDAR requirements for well sites and compressor
stations, including gathering and boosting stations, to 40 CFR part 60, subpart OOOOa rule in
September 2015.253 As those requirements have been incorporated into the final subpart OOOOa
regulation254 – and, thus, the FIP – any LDAR requirements finalized under 40 CFR part 60,
subpart OOOOa are part of the FIP. Thus, new and modified true minor sources subject to the
FIP will be required to comply with certain LDAR requirements. As noted in response to
Comments #39 and #40, and for the reasons stated therein, we did not propose to regulate
existing sources under the FIP, and the final FIP does not regulate existing sources.
8.0 General Comments (e.g., Administrative, Incorporate by Reference)
Earthjustice et al. (0044): The same day that EPA issued the Proposed FIP, it also proposed
three other rules for the oil and gas sector: amended New Source Performance Standards
(“NSPS”) (Proposed Amended NSPS Rule),255 a Source Determination Rule,256 and Control
Techniques Guidelines (“Proposed CTGs”).257 The Proposed FIP requires oil and gas sources in
Indian Country to comply with the Proposed Amended NSPS Rule. Therefore, Environmental
and Tribal Commenters incorporate the comments of several environmental and public health
organizations on the Proposed Amended NSPS Rule by reference into this letter.258
American Petroleum Institute (API) (0046):
253 “Oil and Natural Gas Sector: Emission Standards for New and Modified Sources in the Oil and Natural Gas
Sector,” U.S., Environmental Protection Agency, 80 FR 56593, September 18, 2015,
https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21023.pdf. 254 “Oil and Natural Gas Sector: Emission Standards for New, Modified and Reconstructed Sources,” May 12, 2016,
http://www.epa.gov/airquality/oilandgas/actions.html. 255 80 FR 56593 (Sept. 18, 2015) (Docket No. EPA-HQ-OAR-2010-0505). 256 Footnote 4: 80 FR 56579 (Sept. 18, 2015) (Docket No. EPA-HQ-OAR-2013-0685). 257 Footnote 5: 80 FR 56577 (Sept. 18, 2015) (Docket No. EPA-HQ-OAR-2015-0216). 258 Comments of CATF et al. on Proposed Oil and Natural Gas Sector: Emission Standards for New and Modified
Sources, Dkt. ID No. EPA-HQ-OAR-2010-0505 (Dec. 4, 2015).
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Proposed Language
40 CFR 49.105 requires that oil and natural gas sources using the FIP registration process
comply with six specific federal new source performance standards (NSPS) and national
emission standards for hazardous air pollutant (NESHAP) regulations.
Issue 1 - Incorporation by Reference
The proposed rule appears to make an “evergreen” incorporation by reference – i.e., whenever
the O&G FIP is invoked, the rule appears to require application of the then-current version of
each incorporated regulation. API does not object to this approach as a practical matter because
the then-current version of each rule will apply on its own terms to affected sources. However, it
is beyond EPA’s authority to make an “evergreen” incorporation by reference because any
amendment of the incorporated rules would result in an amendment to the O&G FIP, which
effectively would be accomplished without notice and comment rulemaking as to the FIP. We
recommend that EPA incorporate into the O&G FIP the rules as they stand at the time the FIP is
promulgated. The FIP can easily be amended later if significant changes are made to the
underlying rules.
Recommendation 1 - Incorporation by Reference
(a) For true minor sources that are subject to 40 CFR part 63, subpart DDDDD
(National Emission Standards for Hazardous Air Pollutants for Major Sources:
Industrial, Commercial, and Institutional Boilers and Process Heaters), for purposes of
this FIP, sources must comply with all of the applicable provisions of the standard as
written as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP].
(b) For true minor sources that are subject to 40 CFR part 60, subpart IIII - Standards of
Performance for Stationary Compression Ignition Internal Combustion Engines, for
purposes of this FIP, sources must comply with all of the applicable provisions of the
standard as written as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:
…
(c) For true minor sources that are subject to 40 CFR part 60, subpart JJJJ - Standards
of Performance for Stationary Spark Ignition Internal Combustion Engines, for purposes
of this FIP, sources must comply with all of the applicable provisions of the standard as
written as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:
...
(d) For true minor sources that are subject to 40 CFR part 60, subpart Kb - Standards of
Performance for Volatile Organic Liquid Storage Vessels, for purposes of this FIP,
sources must comply with all of the applicable provisions of the standard as written as of
[INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:
…
(e) For true minor sources that are subject to subpart OOOOa, Emission Standards for
New and Modified Sources in the Oil and Natural Gas Sector, for purposes of this FIP,
sources must comply with all of the applicable provisions of the standard as written as of
[INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:
(f) For true minor sources that are subject to 40 CFR part 63, subpart HH – National
Emission Standards for Hazardous Air Pollutants from Oil and Natural Gas Production
Facilities, for purposes of this FIP, sources must comply with all of the applicable
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provisions of the standard as written as of [INSERT DATE OF FINAL
PROMULGATION OF O&G FIP]:
American Petroleum Institute (API) (0046):
Issue 3 - NSPS OOOOa Typographic Error
There is a typographic error in the reference to the proposed NSPS OOOOa standard. The word
“applicable” should be included, as it is in the references to the other five regulations.
Recommendation 3 - NSPS OOOOa Typographic Error
(e) For sources that are subject to subpart OOOOa, Emission Standards for New and
Modified Sources in the Oil and Natural Gas Sector, for purposes of this FIP, sources
must comply with all of the applicable provisions of the standard as written as of
[INSERT DATE OF FINAL PROMULGATION OF O&G FIP], except for the following:
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #42: One commenter (0046) noted that the proposed language for §49.105 requires
that oil and natural gas sources using the FIP registration process comply with six specific
federal NSPS and NESHAP regulations. The commenter stated that “The proposed rule appears
to make an “evergreen” incorporation by reference – i.e., whenever the oil and natural gas FIP is
invoked, the rule appears to require application of the then-current version of each incorporated
regulation.” The commenter stated that it is beyond the EPA’s authority to make an evergreen
incorporation by reference because any amendment of the incorporated rules would result in an
amendment to the oil and natural gas FIP, which effectively would be accomplished without
notice and comment rulemaking for the FIP. The commenter recommended that the EPA
incorporate into the oil and natural gas FIP the rules as they stand at the time the FIP is
promulgated, noting that the FIP can easily be amended later if significant changes are made to
the underlying rules. The commenter recommended that the text of §49.105 be revised to directly
incorporate by reference each of the six rules.
Response #42: The EPA notes that, under 1 CFR part 51, it cannot incorporate other regulations
by references. It believes the proposed approach to including the NSPS and NESHAP standards
in the FIP is the most efficient method of maintaining consistency with the applicable standards.
Having to amend the FIP every time a standard is changed would be burdensome and create
ambiguity for sources. We disagree that we lack the authority to adopt this approach through
notice and comment rulemaking. While some of the requirements with which sources must
comply may change over time, this does not result in a de facto amendment of the FIP. Rather,
the FIP at all times requires compliance with the eight other rules, to the extent that they apply.
Even in the absence of the FIP, sources subject to any of the eight other rules would be required
to comply with those standards as they exist at the time the source begins construction. The
public will have ample opportunity to comment on any proposed changes to the standards
themselves. No changes have been made as a result of this comment.
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Comment #43: One commenter (0046) noted that there is a typographical error in the reference
to the proposed 40 CFR part 60, subpart OOOOa standard; the word “applicable” should be
included, as it is in the references to the other five regulations.
Response #43: The EPA has corrected the error in the final rule.
9.0 Other Comments (e.g., Forms, ANPR Comments, General Support)
Anonymous Public Comment (0009): I am in support of the proposals outlined in docket EPA-
HQ-OAR-2014-0606. People in "Indian Country" deserve the same air quality standards as
people elsewhere.
Ute Indian Tribe (0039): In addition to our comments on the proposed rule, the Tribe also
incorporates and encloses its August 20, 2014 comments on EPA's advance notice of proposed
rulemaking entitled Managing Emissions from Oil and Natural Gas Production in Indian
Country, published in the Federal Register on June 5, 2014. [79 FR 32502.] Many of these
comments are still applicable to the proposed rule.” [These August 20, 2014 comments are
included in the text of the submitted written comments on pages 8-17.]
Ute Indian Tribe (0039): Under the Clean Air Act, where a tribe has not developed an approved
Tribal Implementation Plan ("TIP"), EPA has the authority to step into the shoes of the tribe
pursuant to the FIP authority and implement a FIP in Indian Country. [76 FR 38748, 38752.]
EPA promulgated the "tribal authority rule" in 1998 to provide more detailed criteria and
procedures for tribes to be treated as states under the CAA if they seek CAA program approval.
[63 FR 7254 (Feb. 12, 1998).] Tribes are authorized to develop a comprehensive TIP and seek
full authority to monitor and enforce the National Ambient Air Quality Standards (NAAQS)
within their reservation. The Ute Indian Tribe has an interest in at least exploring the possibility
of working toward a TIP so that it may one day assume primacy over certain regulatory functions
and expand its authority gradually.
Ute Indian Tribe (0039): The final rule should not implement a setback requirement. This rule
should address air emissions, not the location of the sources creating those emissions in relation
to structures in Indian country. Including a setback requirement undermines tribal sovereignty,
contravenes explicit requirements embodied in existing Indian mineral leases, and is contrary to
existing BIA regulations. Moreover, EPA cannot exceed the authority granted by Congress.259
Congress has not granted authority to EPA to supplant tribal surface jurisdiction. Further,
specific setback requirements are already embodied in Indian mineral leases and the regulations
implementing and governing the same. Finally, many oil and gas producing tribes already have
ordinances or regulations that establish setbacks. EPA does not have surface authority as a
setback requirement has nothing to do with the air.
The federal government should protect trust resources by refusing to implement unnecessary
regulatory barriers and complications that compromise the value of Indian minerals that fund
essential government services. Including setback requirements in this rule would be such an
example of unnecessary regulations. The federal government should not regulate where the tribes
259 La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986).
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already do. While some tribes have passed zoning laws for oil and gas facilities, others include
setback provisions in Exploration and Development Agreements or oil and gas leases. Further,
EPA should support tribes that exercise their sovereignty. Tribes can determine the appropriate
setback distance. Applying state setback requirements to Indian land would undercut tribal
negotiations, tribal ordinances, and tribal regulations. Such action would conflict with well-
established federal case law and place Indian lessors under the jurisdiction of state requirements
that are wholly inapplicable to Indian trust minerals. The Ute Indian Tribe opposes any attempt
to apply state law to the Uintah and Ouray Reservation.
It is the duty of tribes to protect the property and wellbeing of lands subject to tribal jurisdiction
by establishing setback requirements applicable to such lands. Individual tribal energy offices
have the expertise to determine proper distances and when a variance should be granted.
Establishing a distance from certain types of structures is a matter of tribal, not federal, concern.
Additionally, EPA should not compromise the ability of tribes to include other provisions in
setback requirements, limiting operations to more than just a house, structure, or reservoir of
water without the surface owner's prior written consent. The federal government implicitly
acknowledged this in the Fort Berthold FIP, which does not contain a setback requirement. The
EPA must defer to tribes on setback requirements. Finally, federal regulations already include
setback requirements. Indian mineral leases authorized by the IMLA and the 1909 Act contain a
provision prohibiting the lessee from drilling within a certain distance of any house or barn on
the premises without the lessor's written consent approved by the Secretary. [See 25 CFR §§
211.47(±); 212.47(±).] This distance is typically two hundred feet. These agreements between
Indian mineral owners and mineral lessees, which the Secretary approves, include a bargained
for setback requirement.
Ute Indian Tribe (0039): EPA requests comments on whether state requirements should be the
basis for requirements in surrounding areas under Federal jurisdiction should be used. The Tribe
does not believe that it is appropriate to apply state regulations to Indian Country. Just as it
would be inappropriate to apply Utah or California state law to the Uintah and Ouray
Reservation, it would be inappropriate to apply one state's law to all of Indian Country. For
example, applying robust yet costly and burdensome regulations to Indian Country, like those
that exist in the State of California, would disadvantage Indian tribes in states more conducive to
oil and gas development. By developing reservation or region-specific FIPs, EPA would promote
development while also applying, if necessary, an added layer of environmental protection that
specifically addresses the Tribe's concerns and the unique characteristics of the region or
reservation.
The EPA’s summary of the above comments and the EPA’s responses to these
comments on the proposed amendments to the Federal Indian Country Minor NSR
rule are as follows:
Comment #44: One commenter (0039) stated that the final rule should not implement a setback
requirement. The commenter stated that including a setback requirement undermines tribal
sovereignty, contravenes explicit requirements embodied in existing Indian mineral leases, and is
contrary to existing BIA regulations. The commenter also noted that the EPA cannot exceed the
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authority granted by Congress. The commenter characterized setback requirements as
unnecessary regulations, stating that the tribes can determine the appropriate setback distance.
Response #44: There was no setback requirement in the proposed FIP, and the EPA is not adding
a setback requirement in the final rule. No changes have been made as a result of this comment.
Comment #45: One commenter (0039) submitted comments on whether state requirements
should be the basis for the FIP requirements. One commenter recommended that, if the EPA
chooses not to regulate existing sources throughout Indian country, then the EPA should at least
regulate existing sources located in states that already do so. The commenter noted that putting
state and tribal lands on a level playing field will protect the health of tribal members. The
commenter also noted that, in order to comply with the requirements of Executive Order 12898,
the EPA should regulate existing sources on tribal lands that are located within states that already
regulate existing sources. The commenter stated that it is not appropriate to apply state
regulations to Indian country. Reservation- or region-specific FIPs should be developed that
address tribes’ concerns and the unique characteristics of the regions or reservations at issue.
Response #45: As discussed above, and for the reasons stated, the FIP does not regulate existing
sources. Further, a mere desire to “level the playing field” is not a sufficient, sole basis for
imposing requlatory requirements on oil and natural gas source owners/operators. Rather, the
EPA would need to determine that the state law requirements in question were necessary or
appropriate. No changes have been made as a result of this comment.
Comment #46: One commenter (0009) expressed support for the proposed rules.
Response #46: The EPA appreciates the expression of support.
10.0 Comments on Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
Ute Indian Tribe (0039): EPA should engage the Tribe in additional government-to-government
consultation once EPA has reviewed comments on the proposed rule and is prepared to discuss
those comments and any changes to the proposed rule. EPA's May 4, 2011, "Policy on
Consultation and Coordination with Indian Tribes" provides in Section V.B.I. that "regulations
or rules" and "permits" are "normally appropriate for consultation" among a number of other
EPA activities. In addition, EPA's commitment to consult on regulations and rules fulfills
Executive Order No. 13175 on "Consultation and Coordination with Indian Tribal Governments"
which requires that, "Each agency shall ... ensure meaningful and timely input by tribal officials
in the development of regulatory policies that have tribal implications."
Of course, this is also consistent with President Obama's direction in his November 5, 2009,
Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation. In
that Memorandum the President stated that, "My Administration is committed to regular and
meaningful consultation and collaboration with tribal officials in policy decisions that have tribal
implications including, as an initial step, through complete and consistent implementation of
Executive Order 13175." The President also stated that, "Consultation is a critical ingredient of a
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sound and productive Federal-tribal relationship." We agree with the President. Federal rules are
more effective when we work together.
Ute Indian Tribe (0039): Most important and before proceeding further, the Tribe asks that
EPA, the Department of Justice and concerned tribes engage in consultation to address EPA 's
misguided attempt to revise the definition of Indian Country. The issue EPA should be
addressing is its regulatory process for affirming tribal authority to exercise jurisdiction under
the Clean Air Act, not Congress' longstanding definition of Indian Country.
Comment #47: One commenter (0039) requested that the EPA consult with tribes on
development of the FIP, and also requested that the EPA not revise the definition of Indian
Country as part of this regulatory action.
Response #47: The EPA agrees with the commenter that consultation with affected tribes is
important to development of a successful FIP. The EPA remains available to consult with tribes
in regards to issues that affect them, including on the draft FIP, or proactively in connection with
tribal efforts to develop a TIP. The EPA has reached out to tribes during the development of this
FIP. The EPA notes that the Mandan, Hidatsa, and Arikara Nation expressed an interest in
working with us to develop this FIP, although they did not submit specific comments on this
topic. It is worth noting that we have made some changes to the FIP proposal as a result of tribal
comments. Most notably, at the request of a tribal commenter, we have clarified that we are not
changing the definition of Indian country. Instead, we are clarifying the geographic applicability
of the FIP with respect to areas of Indian country. As the FIP is implemented we will continue to
provide regular outreach to tribes to ensure we address issues concerning the FIP if and when
they arise. The EPA is always available for consultation with any interested tribe. After the
comment period for this rulemaking closed in December, the EPA followed up on the
commenter’s request and it was determined that the requested consultation was no longer
necessary.
11.0 Comments Requesting Extension of the Comment Period
Twelve commenters (0008, 0014, 0015, 0018, 0019, 0021, 0022, 0023, 0024, 0025, 0026, 0058)
requested that the EPA extend the public comment period beyond the 60-day period provided for
in the September 18, 2015 Federal Register notice of the proposed FIP, which indicated
comments must be received by November 17, 2015. Commenters noted that the proposed rule
was out for public review concurrently with several other proposed EPA and Bureau of Land
Management (BLM) oil and gas rules. These requests asked for an extension of between 60 and
180 days.
Response: After considering the requests to extend the public comment period received from
various trade and business organizations, states and tribes, the EPA decided to extend the public
comment period until December 4, 2015. This extension ensured that the public had additional
time to review the proposed rule.
171
12.0 Out of Scope Comments
Thirteen commenters (0010, 0011, 0012, 0013, 0020, 0027, 0037, 0043, 0047, 0050, 0052, 0058)
provided comments that are considered out of scope relative to this regulatory action. These
comments were related to the following:
• Concerns related to methane emissions;
• Deferment to state regulations to control oil and gas emissions;
• Ongoing studies in the Uinta Basin;
• The EPA’s proposed New Source Performance Standard for new and modified oil
and gas sources;260
• The EPA’s proposed Control Technique Guidelines for oil and gas sources;261
• The EPA’s source determination proposal for oil and gas sources;262
• Flash gas capture technologies; and
• An inquiry about getting a comment submitted in December 2015 published in the
Response to Comments Document.
260 “Oil and Natural Gas Sector: Emission Standards for New and Modified Sources in the Oil and Natural Gas
Sector,” U.S., Environmental Protection Agency, 80 FR 56593, September 18, 2015,
https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21023.pdf. 261 “Release of Draft Control Techniques Guidelines for the Oil and Natural Gas Industry,” U.S., Environmental
Protection Agency, 80 FR 56577, September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-
21027.pdf. 262 “Source Determination for Certain Emission Units in the Oil and Natural Gas Sector,” U.S., Environmental
Protection Agency, 80 FR 56579, September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-
21026.pdf.
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